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IOYe RN | QJ 


THE 


ELEMENTS OF ROMAN LAW 
BY GALUS 


POSTE 


Zonbdon 
HENRY FROWDE 


Oxrorp UwivERsITY PRESS WAREHOUSE 


AMEN Corner, E.C. 


Qo CL 1 9 59H. 


* 4» 
| © GAII c 


2S 
INSTITUTIONUM IURIS CIVILIS 


COMMENTARII QUATTUOR 


OR 


ELEMENTS OF ROMAN LAW 
BY GAIUS 


t 
WITH A TRANSLATION AND COMMENTARY 
BY 


EDWARD POSTE, M.A. 


BABRISTER AT"LAW 


AND FELLOW OF ORIEL COLLEGE, OXFORD 


THIRD EDITION, REVISED AND ENLARGED 


e 
Orford 
AT THE CLARENDON PRESS 


M.DCCC.XC 


[All rights reserved | 





Orford 


PRINTED AT THE CLARENDON PRESS 
BY HORACE HART, PRINTER TO THR UNIVERSITY 





PREFACE. 


om} 


In the year 1816, Niebuhr noticed in the library of the Cathedral 
Chapter at Verona & manuscript in which certain compositions of 
Samt Jerome had been written over some prior writings, which in 
certam places had themselves been superposed on some still earlier 
inscription. On communication with Savigny, Niebuhr came to 
the conclusion that the lowest or earliest inscription was an ele- 
mentary treatise on Roman Law by Gaius, a treatise hitherto only 
known, or principally known, to Roman lawyers by a barbarous 
epitome of its contents inserted in the code of Alaric 2, king of 
the Visigoths (§ 1, 22, Comm.). The palimpsest or rewritten 
manuscript originally contained 129 folios, three of which are now 
lost. One folio belonging to the Fourth Book ($ 186-5 144) 
having been detached by some accident from its fellows, had been 
published by Maffei in his Historia Teologica, a.p. 1740, and re- 
published by Haubold in the very year in which Niebuhr discovered 
the rest of the codex. 

Each page of the MS. generally contains twenty-four lines, each 
line thirty-nine letters; but sometimes as many as forty-five. On 
sixty pages, or about a fourth of the whole, the codex is doubly 
palimpeest, i.e. there are three inscriptions on the parchment. 
About a tenth of the whole is lost or completely illegible, but part 
of this may be restored from Justinian's Institutes, or from other 
sourees ; accordingly, of the whole Institutions about one thirteenth 
is wanting, one half of which belongs to the Fourth Book. 

From the style of the handwriting the MS. is judged to be older 
than Justinian or the sixth century after Christ; but probably did 
not precede that monarch by a long interval. 


vi | PREFACE. 


In à year after Niebuhr's discovery the whole text of Gaius had 
been eopied out by Goeschen and Hollweg, who had been sent to 
Verona for that purpose by the Prussian Royal Academy of 
Sciences, and in 1820 the first edition was published. In 1874 
Studemund published an apograph or facsimile volume, the fruits 
of a new examination of the Veronese MS.; and in 1877 Stude- 
mund,'with the assistance of Krueger, published a revised text.of 
Gaius founded on the apograph; and I have to acknowledge the 
courtesy of those distinguished scholars in permitting their text to 
be printed by the Clarendon Press for the purposes of this edition. 

Little is known about Gaius, not even his family name (cog- 
nomen), or gentile name (nomen), for Gaius is merely an individual 
name (praenomen) The word ‘Gaius’ is a trisyllable in the 
classical period, for instance, in the versification of Catullus, 
Martial, and Statius; but at a Jater period, e. g. in the versifieation 
of Ausonius, it is contracted into a dissyllable. 

Respecting his date, we know that he flourished under the 
emperor Hadrian (a.p. 117—188), Antoninus Pius (A.p. 188-161), 
Marcus Aurelius Antoninus (A.D. 161-180), and Commodus (a.p. 
180-192). Gaius himself mentions that he was a contemporary of 
Hadrian, Dig. 34, 5, 7, pr. He apparently wrote the First Book 
of his institutions under Antoninus Pius, whom he mentions, § 58, 
$ 74, $ 102, without the epithet Divus (of divine or venerable 
memory), & term only applied to emperors after their decease, but 
in the Second Book, § 195, with this epithet. The Antoninus 
mentioned, § 126, is either Pius or Marcus Aurelius Philosophus. 
Respecting the rules of Cretio, 2 § 177, Gaius appears not to be 
cognizant of a constitution of Marcus Aurelius mentioned by 
Ulpian, 22, 84. That he survived to the time of Commodus ap- 
pears from his having written a treatise on the Sc. Orphitianum, 
an enactment passed under that emperor. 

As the opinions of Gaius are not quoted by the subsequent 
jurists whose fragments are preserved in the Digest, it has been 
inferred that Gaius was a public teacher of jurisprudence (jus 
publice docens), who never in his lifetime obtained the highest 
distinction of the legal profession, the title of juris auctor (jus 
publice respondens). Valentinian, however, after his death raised 


PREFACE. vil 


Gaius to the position of juris auctor, that is, gave to his writings 
pre-eminent auctoritas, or exclusive legislative authonty, equal to 
that of four other jurists, Papinian, Ulpian, Paulus, and Modestinus. 

Besides his Institutions, Gaius was the author of many other 
treatises, of which fragments are preserved in the Digest, and some 
of which are alluded to by Gaius m the Institutions. For instance, 
he wrote a treatise on Edictum Urbicum, 1 § 188, which, as 
opposed to Edictum Provinciale, probably embraced the edicts of 
the Praetor urbanus, the Praetor peregrinus, and the Aedilis 
curulis; a commentary on the Twelve Tables, another on the lex 
Papia Poppaea, another on the works of Quintus Mucius, besides 
a treatise on Res quotidianae, and the above-named treatise on 
Se. Orphitianum and another on Sc. Tertullianum. 

The name of the recently discovered work does not appear in 
the MS. ; but from the proem to Justinian's Institutes appears to 
have been INSTITUTIONES, or to distinguish it from the systems of 
Rhetoric which also bore this name, INSTITUTIONES IURIS CIVILIS. 
From the way in which it is mentioned by Justinian, we may infer 
that for 850 years the ¢lite of the youth of Rome were initiated 
in the mysteries of jurisprudence by the manual of Gaius, much 
as English law students have for many years commenced their 
labours under the auspices of Blackstone. It is probably in 
allusion to the familiarity of the Roman youth with the writings 
of Gaius that Justinian repeatedly calls him (e.g. Inst. proem, 6; 
Inst. 4, 18, 5; and in the Constitution prefixed to the Digest, and 
addressed ad Antecessores, § 1), ‘our friend Gaius’ (Gaius noster). 
The shortness of the time that sufficed Tribonian and his colleagues 
for the composition of Justinian’s Institutes (apparently a few 
months towards the close of the three years devoted to the com- 
pilation of the Digest, Inst. proem) is less surprising when we 
see how closely Tribonian has followed the arrangement of Gaius, 
and how largely, when no change of legislation prohibited, he has 
appropriated his very words. 

Certain internal evidences, as already noticed, fix the date at 
which portions of the Institutions were composed. The emperor 
Hadrian is spoken of as Departed or Deceased (Divus) except in 
1 § 47 and 2 § 57. Antoninus Pius is sometimes (1 § 58, 1 § 102) 


viii PREFACE. 


named without this epithet, but in 2 $ 195 has the style of Divus. 
Marcus Aurelius was probably named, 2 § 126, and the Institutions 
were probably published before his death, for 2 § 177, as above 
mentioned, contains no notice of a constitution of his, recorded by 
Ulpian, that bears on the matter in question. Paragraphs 8 § 24, 
§ 25 would hardly have been penned after the Sc. Orphitianum, 
A. D. 178, or the Se. Tertullianum, a.p. 158. 

In the text of Gaius, the words or portions of words which are 
purely conjectural are denoted by italics. The orthography of the 
Veronese MS. is extremely inconstant. Some of these inconstancies 
it will be seen are retained: e.g. the spelling oscillates between the 
forms praegnas and praegnans, nanctus and nactus, erciscere and 
herciscere, prendere and prehendere, diminuere and deminuere, 
parentum and parentium, vulgo and volgo, apud and aput, sed and 
set, proxumus and proximus, affectus and adfectus, inponere and 
imponere, &c. Some irregularities likely to embarrass the reader, 
e.g. the substitution of v for b in debitor and probare, the substi- 
tution of b for v in servus and vitium, have been tacitly corrected. 
The numeration of the paragraphs was introduced by Goeschen in 
his first edition of Gaius, and for convenience of reference has been 
retained by all subsequent editors. The rubrics or titles marking 
the larger divisions of the subject, with the exception of a few at 
the beginning, are not found in the Veronese MS. Those that are 
found are supposed not to be the work of Gaius, but of a tran- 
scriber. The remainder are partly taken from the corresponding 
sections of Justinian’s Institutes, partly invented or adopted from 
other editors. 

An elementary treatise can scarcely make any profession of 
originality. I have availed myself of lights wherever I could 
obtain them. And, not to crowd the following pages with refer- 
ences to the writers to whom I am indebted, I must here once for 
all acknowledge my obligation, not to mention many authors from 
whom I have borrowed isolated views or quotations, to Austin, to 
Ortolan, to Puchta, to Ihering, to Bethmann-Hollweg, and above 
all to Vangerow and Von Savigny. 

The present edition differs from its predecessors not only by 
various corrections and additions, and by adjustment of the trans- 


PREFACE. ix 


lation and commentary to the new readings obtained from the re- 
examination of the Veronese MS. by Studemund and the critical 
labours of Krueger; but also by omission from the commentary of 
much that seemed unnecessary to the purpose of giving the student 
a commanding though general view of the principal branches of 
the Roman Civil Law. 

In preparing this third edition for the press I have received the 
valuable assistance of my friend Mr. E. A. Whittuck. 

E. P. 


B.C. 


753. 
578—535. 


910. 
494. 
151—450. 
445. 
366. 
326. 
312. 


287. 
287. 
280. 


247. 
244 t. 


234 f. 


CHRONOLOGICAL TABLE. 


Foundation of Rome. 


Servius Tullius. Division into thirty Tribes. Institution 
of Comitia Tributa, Census, Comitia Centuriata. 


Office of consuls instituted. 

First secession of Plebs. Institution of Tribuni Plebis. 
Law of the Twelve Tables. 

Lex Canuleia. 

Office of Praetor instituted. 

Lex Poetelia. 


Cnaeus Flavius publishes forms of actions and a calendar of 
dies fasti and nefasti. 


Last secession of the Plebs. Lex Hortensia. 
Lex Aquilia. 


Tiberius Coruncanius (first plebeian pontifex maximus), 
consul. 


First appointment of a Praetor Peregrinus. 
Lex Silia. 
Lex Calpurnia. 


xii | CHRONOLOGICAL TABLE. 


B. C. 


204. Lex Cincia. 
200. Lex Plaetoria passed about this time. 
183. Lex Furia testamentaria. 
173. Lex Cicereia. 
170. Lex Aebutia. 
169. Lex Voconia. 
105. P. Rutilius Rufus, consul. 
95. Q. Mucius Scaevola (pontifex), consul. 
81. Lex Cornelia de injuriis. 
66. C. Aquilius Gallus, praetor, colleague of Cicero. 
51. Servius Sulpicius, consul. 
40. Lex Falcidia. 
27. Octavianus receives the titles of Augustus and Imperator. 
M. Antistius Labeo. 
C. Ateius Capito. 
18. Lex Julia de adulteriis et de maritandis ordinibus. 
A. D. 
4. Lex Aelia Sentia. 
Lex Fufia Caninia. 
6. Lex Julia de vicesima hereditatium. 
9. Lex Papia Poppaea. - 


14-37. Tiberius. 
Masurius Sabinus. 
Proculus. 

19. Lex Junia Norbana. 


30. C. Cassius Longinus, consul. 


A.D. 


37—41. 
41— 54. 


42. 
46. 
47. 
204—868. 
62. 
64. 
69—79. 


79—81. 
8 1-——96. 
96—98. 


CHRONOLOGICAL TABLE. 


Caligula. 

Claudius, 

S. C. Claudianum. 
S. C. Largianum. 
S. C. Velleianum. 
Lex Claudia. 

Nero. 

S. C. Trebellianum. 
S. C. Neronianum. 
Vespasian. 

S. C. Macedonianum. 
R. C. Pegasianum. 
Titus. 

Domitian. 


Nerva. 


98—117. Trajan. 
117—138. Hadrian. 


129, 
130. 
132. 


S. C. Juventianum. | 


S. C. Tertullianum. 


Edictum perpetuum of Salvius Julianus. 


xiii 


138—161. Antoninus Pius. First and part of the second book of the 


178. 


Institutes of Gaius probably written at this time. 
161—180. Marcus Aurelius Antoninus Philosophus. 


S. C, Orphitianum. 


180—192. Commodus, sole Emperor. 


193—212, Septimins Severus. 


204. 


Papinian, praefectus praetorio. 





xiv 


A.D. 


212—217. 
222—236. 
222. 
294. 
306—337. 
330. 
426. 


439. 
506. 


527—565. 
529. 
533. 
534. 


CHRONOLOGICAL TABLE. 


Caracalla. 

Alexander Severus. 

Ulpian, praefectus praetorio. 

Judicia ordinaria abolished by Diocletian. 

Constantine the Great. 

Constantinople the seat of government. 

Law of Citations, a constitution of Theodosius II and Valen- 
tinian III. 

Codex Theodosianus. 


Lex Romana Visigothorum, or Breviarium Alarici, containing 
Epitome of Gaius. 


Justinian. 

Publication of Code. 

Publication of Digest and Institutes. 
Revised Edition of Code. 


CONTENTS. 


BOOK I. 


STATUS OR UNEQUAL RIGHTS [DE PERSONIS]. 


9—12 


565—107 
108—115 
116—123 
124—141 


142—196 


197—200 


PAGE 
SOURCES OR ORIGINS of law, or various ORGANS of 


legislation, CIVIL law, and NATURAL law ... 1—35 
DIVISIONS OF LAW 85— 839 
The subjects of the Civil Code are 

(1) UNEQUAL RIGHTS (PERSONAE, Book I) ; 

(2) EQUAL RIGHTS (RES, Books II and IIT); 

(3) PROCEDURE (ACTIONES, Book IV); 

STATUS or INEQUALITY of rights divides the members 

of society into nine classes: the Freeborn, the Freedman, 

the Slave; the Citizen, the Latin, the Alien; the Father of 

the household, the Son of the household, the Bondsman ...  89—42 
FREEDMEN 42—57 
SLAVES ... 58—60 
PATERNAL POWER, the modes in which it originates 61—87 
MARITAL POWER, the modes in which it originates 87—95 
BONDAGE, the mode in which it originates ... eee 95—99 
Modes in which PATERNAL POWER, MARITAL 

POWER, and BONDAGE are terminated ose .. 99—108 
INEQUALITIES among those who are INDEPENDENT 

(Fathers of their household). 

GUARDIANSHIP, classes and modes in which it originates 
and terminates ... oes ees e en 108—136 


CURATORS 136—145 


xvi 


SECTION 


1—79 


62—64 


80—85 
86—96 


97—190 
191—245 


246—259 
260—289 


CONTENTS. 


BOOK II. 


EQUAL RIGHTS [DE REBUS]. 


EQUAL RIGHTS are 
(1) ELEMENTARY or UNITARY (RES SINGULA E). 
(2) COLLECTIVE (RERUM UNIVERSITATES). 
Elementary rights are 
(1) REAL (JUS IN REM). 
(2) PERSONAL (JUS IN PERSONAM). 


Real rights are (not to mention PRIMORDIAL rights) 
(1) UNLIMITED (DOMINIUM or OWNERSHIP). 
(2) LIMITED (SERVITUS or EASEMENT). 


ELEMENTARY or UNITARY RIGHTS (RES SIN- 
GULAE), and in the first place the REAL RIGHTS of 
OWNERSHIP and SERVITUDE (one branch of RES 
SINGULAE). 


TITLES or facts originative of REAL rights, whether 
OWNERSHIP OR SERVITUDE .. Te - 


Ownership without power of alienation, and power of alienation 
without ownership  ... er es e 


Alienation by WARDS ... 
INSTRUMENTS of Acquisition of Real rights... 


COLLECTIVE RIGHTS (RERUM UNIVERSITATES]. 


The TITLES by which a person is invested with Collective 
rights, in other words, the TITLES of UNIVERSAL 
SUCCESSION, are five, Testamentary disposition, Intestacy, 
Insolvency, Adrogation, and Manus or Marital power. 


WILLIS .. 


LEGACIES, Legacies are Titles to RES SINGULAE, but 
are introduced in this place as being acoessory to WILLS 


TRUSTS. 
COLLECTIVE rights in TRUST , - 
ELEMENTARY rights in TRUST, though erampls of 


RES SINGULAE, are introduced in this piace as ^ being 
accessory io WILLS ..._... T e 


PAGE 


140—195 


187 
195—196 
197—202 


202—252 


258—271 


271—388 


289—298 


SECTION 


1—38 
39—76 
77—87 


88—162 
163—107 
168—181 
182—225 


88—102 
169—109 


CONTENTS. 


BOOK III. 


INTESTACY or title by DESCENT. 

ORDER of Intestate Succession 

Successions to FREEDMEN, testate and intestate 

Succeesions by INSOLVENCY, ADROGATION, MARI- 
TAL POWER, transfer of Inheritance eos 

PERSONAL RIGHTS, or OBLIGATIONS [the other branch 
of RES SINGULAE], and their TITLES. 

Obligations founded on CONTRACT 

INSTRUMENTS of acquiring Obligation 

EXTINCTION of Obligation 

Obligations founded on DELICT 


BOOK IV. 


PROCEDURE [DE ACTIONIBUS]. 


CLASSIFICATION of Actions e e 
STATUTE-PROCESS or ANCIENT method of Procedure .. 
FORMULARY Procedure, FICTION 

Component parts of the FORMULA. ... , 

SUBSIDIARY actions on Contract and Delict es 

REPRESENTATION of the principal parties to an action ... 

SECURITIES to be given by the parties to an action 

STATUTORY actions (1) in a wider sense, as actions required 
by the lex Julia to be terminated in eighteen months from 
their institution; and (2) in à narrower sense, or such of the 
former olass as in respect of NOVATION or CONSUMP- 
TION of the right of action are assimilated by the lex 
Aebutia to the statute-process (legis actio) of the older 
system. 

NON-STATUTORY actions, or actions founded on the 
executive authority of the Praetor, are required to ter- 
minate within twelve months from their institution, and 
have no power at civil law of consuming or novating a right 
of action, but bar a subsequent action when pleaded by the 
exceptio rei judicatae. 

Actions with a pendency or duration of eighteen months, but 
without a power of NOVATION or CONSUMPTION at 
civil law, are STATUTORY in one sense and NON- 
STATUTORY in another - 

b 


xvii 


PAGE 


294 —306 
806—323 


823—398 


838—411 
411—412 
418—425 
425—454 


455—407 
467 —484 
484—498 
493—528 
523 —531 
531—588 
533—540 


540—551 





xvlll 


BECTION 
110—118 


114 
115—197 


188—170 
171—182 


CONTENTS. 


PERPETUAL actions, or actions which can be instituted at 
any date from their nativity (in later times within twenty 
or thirty years from their nativity), and TEMPORARY 
actions, or actions that must be instituted within a certain 
date (usually a year) from their nativity. Actions TRANS- 
MISSIBLE or NOT-TRANSMISSIBLE to the successors 
of the principal parties er en en e. e 

Title of defendant subsequent to Litis contestatio 

NEGATION and EXCEPTION, or NULLITY, NULLIFI- 
CATION, COLLISION, of rights m 

INTERDICT and POSSESSION and DETENTION et 

VEXATIOUS litigation 

ADDENDUM 

APPENDIX 


INDEX 


PAGE 


551—560 
5660 —562 


562—587 
587—025 
625—032 
638 
645 
649 


EXPLANATION OF ABBREVIATIONS. 





Inst. Institutes of Justinian. 
Dig. or D. Digest or Pandects of Justinian. 
Cod. or C. Codex of Justinian. 


The meaning of the numbers that follow these abbreviations will be 
obvious to any one who opens a volume of the Corpus Juris. 


Pr. stands for principio, meaning, in the first paragraph of a title of 
the Institutes, or of a fragment of a title of the Digest. | 


The Commentaries of Gaius are referred to by numbers indicating the 
book and the paragraph: e.g. 2 § 5, indicates the 5th paragraph of 
Book 2. 

When Ulpian or Paulus is quoted, the works referred to are the Regulae 
of Ulpian and the Sententiae Receptae of Paulus. 

When Savigny or Vangerow is simply cited, the references are to 
Savigny, System des heutigen Rómischen Rechts; Vangerow, Lehr- 
buch der Pandekten. 


ELEMENTS OF ROMAN LAW. 


BOOK I. 


DE PERSONIS. 





Tue following treatise is a portion of a particular jurisprudence ; 
it is an exposition of the Civil Law of Rome, that is to say, of her 
Private law (jus privatum) as opposed to her Public law (jus pub- 
lieum) in both acceptations, in other words, as opposed both to her 
Criminal law and to her Constitutional law. 

À scientific jurisprudence and & well-arranged code would imitate 
the method of the natural sciences in proceeding from the universal 
to the particular, from the general to the special: that is, before 
expounding the special branches of law, would enunciate the ideas 
and principles common to all the branches. The advantage gained 
by this arrangement would be simplification and the avoidance of 
repetition. Thus Biology expounds the general doctrines of ana- 
tomy and physiology before it treats in detail of the separate classes 
of vegetables or animals; and the best German jurists follow a 
similar method in their Pandects or systematic expositions of 
Roman law. Gaius, however, in his Institutions, thinking, per- 
haps, that the concrete should be presented to beginners before the 
abstract, omits the general or transcendental basis of jurisprudence 
and plunges at once into the special divisions of the code. A com- 
mentator on Gaius, accordingly, if he cannot abstain entirely from 
preliminary generalisations, must be as brief as he can, and confine 


Ve. B 


2 PRELIMINARY DEFINITIONS. 


himself to unfolding the import of some of the pivot terms and 
most pervading conceptions; and we shall find most of the defi- 
nitions we require already elaborated for us in the writings of 
Austin, to whose valuable but unfortunately unfinished Lectures 
on Jurisprudence I am indebted for many of the definitions and 
divisions that will be employed in this introduction. 

A few definitions will suffice. The words which denote the 
instruments and materials of legislation and the subject-matter 
of Jurisprudence are Law, Sanction, Title, Right, Obligation. 
The definitions of these five terms may, indeed, be regarded as a 
single definition, for the things denoted by these five words are 
merely the same thing looked at from different sides: at least 
they are correlative ideas, indissolubly connected parts of the same 
indivisible whole. The definitions of these terms which we proceed 
to give are their definitions, it is to be observed, as used in juris- 
prudence, that is, in the exposition not of natural or moral laws 
but of positive or politieal laws, and are accordingly unconnected 
with the hypotheses of any particulár school of Ethical speculation. 

A Law is a command ; that is to say, it is the signification by a 
lawgiver to a person obnoxious to evil of the lawgiver's wish that 
such person should do or forbear to do some act, with the inti- 
mation of an evil that will be inflieted in case the wish be 
disregarded. 

Points to be noted here are the author and the subject of law. 
Every law is set by a sovereign person or a sovereign body of 
persons to a member or members of the independent political 
society wherein that person or body is sovereign or supreme: it 
is set by a monarch or sovereign number to a person or persons in 
a state of subjection to its author. A Sovereign is a determinate 
human superior, who receives habitual obedience or submission from 
the bulk of a given society, and is not in the habit of yielding 
obedience to a like superior. 

A Sanction is the evil annexed to the command of the lawgiver. 

Obligation or duty is the burden imposed by the command of 
the lawgiver on a person obnoxious to the evil annexed to the 
command. 

Right is the capacity of exacting by the power of the sovereign 
certain acts or forbearances; or, it is the capacity of the person 
benefited by a doing or forbearance commanded by the lawgiver 
to enforce that performance or forbearance from the person to 


PRELIMINARY DEFINITIONS. 3 


whom it is onerous, that is, to whom it is commanded, by an appeal 
to the sovereign power to whom such person is subject. 

Dealing at present with the Civil code, we shall confine ourselves, 
in treating of Rights, to rights of subject against subject, that is, 
to righte which imply a common superior. Whether a sovereign 
can have rights against his own subject, whether, that is, the con- 
ception of rights permits the same person to be party and sove- 
reign, is a question that may be left to the theory of the Political 
code. The question whether a sovereign in his civil courts of 
judicature, shall accord rights to a foreign potentate, that is, to one 
who owes him no allegiance, may be left to the theory of the 
salutary but sanctionless code called the Comity of nations. 

Title is the fact, event, or circumstance defining or designating 
the person on whom the lawgiver confers a right or on whom 
he imposes an obligation. The word Title is employed in a limited 
application by English lawyers, to denote the mode of acquiring a 
Real right; but we use it without any limitation to any branch 
of law, to denote universally the fact originating any right, real 
or personal, and not. only to denote the fact originating any right, 
but also the fact originating any obligation, civil or criminal; nay, 
further, not only to denote the mode in which any right, or obliga- 
tion is originated, or begins, but also to denote the mode in which 
any right or obligation is terminated or comes to an end. To use 
the nomenclature of Bentham, a Title is a fact Collocative! of Rights 
and Obligations. The generic term Collocative splits into Investi- 
tive and Divestitive. Title, then, is a fact Investitive or Divestitive 
of Rights and Obligations. Investitive again splits into Collative 
and Impositive, and Divestitive into Privative, or Ablative, and 
Exonerative. Title, then, definitively, is any fact Collative or Priva- 
tive of a Right and Impositive or Exonerative of an Obligation. 

Every Right implies a Law by which it is created, a Title to 
which it is annexed, a sovereign by whom it is enforced, a Sanction 
by means of which it is enforced, a person in whom it resides, and 
a person on whom a correlative obligation is incumbent. The same, 
mutatis mutandis, may be said of every relative Obligation. We 
say of every relative obligation, for not all obligations are relative. 
Obligations are either relative or absolute; relative are those which 
imply a private person invested with a corresponding right, absolute 

! As the term Disposition is presently used in a narrower sense, the term Colloca- 
tive bas been substituted for Bentham’s term Dispositive. 

B 2 


4 PRELIMINARY DEFINITIONS. 


those which do not involve a private person invested with a cor- 
relative right. For instance, the duties violated by smuggling, 
by polygamy, by breach of prison, by cruelty to brute animals, are 
not obligations to a private person but to the sovereign, and the 
rights of the sovereign, if he has any, have no limits but the limits 
of his might, and bear no resemblance to the righte contemplated 
by the Civil code, which are acts or forbearances, enforcible by 
appeal to a common human superior; for the sovereign, ex vi ter- 
mini, has no human superior. All rights, then, imply correlative 
obligations, but not all obligations imply correlative rights. 

Every legislation or system of laws is composed of a vast number 
of particular laws, having the same or analogous features, just as 
every tissue is composed of an infinity of threads, and every veget- 
able or animal organism of an infinity of cells: and having before 
our eyes the cardinal points of any individual law, by considering 
the division or differentiation of these cardinal points we may 
anticipate the leading divisions of the general mass of legislation. 

Having given the definitions of these cardinal points, we will 
now notice some of their fundamental divisions. 

The primary division of Rights, the one most necessary for 
forming clear conceptions on the subject, a division which, as far 
as my acquaintance with juristic literature extends, Austin was the 
first to make clear and luminous, is the division into Sanctioned 
rights and Sanctioning rights. This division of rights depends on 
a corresponding division of the Titles to which they are annexed. 

Sanctioned, or primary, or final rights, are such nights as exist 
antecedently to any Wrong, rights whose Title or origin from 
which they spring, and which defines the person on whom they are 
conferred, is some circumstance other than a Wrong. Sanctioning, 
secondary, or instrumental rights, are rights engendered by a Wrong 
committed by some other person, rights conferred upon a person 
whose title to them is the fact that he has suffered a Wrong. 

Wrong is the violation of right or duty, and may be defined as 
disobedience, intentional or negligent, to the command of the 
sovereign, entitling the wrongdoer to the Sanction, that is, to the 
evil threatened by the lawgiver. Examples of Sanctioned righte 
are the right of a proprietor to enjoy the fruits of ownership, the 
right of a contractor to the performance of the promise made by 
the person with whom he contracted, the right of every respectable 
member of society to have his honour unstained, his character 


PRELIMINARY DEFINITIONS. 5 


unimpeached. The corresponding Sanctioning rights, or nghte 
of the injured party to redress, are the right of the dispossessed 
proprietor to be reinstated in possession, the right of the deceived 
contractor to have damages for non-performance or to have specific 
performance enforced by the court, the nght of the slandered 
person to recover damages for slander. 

The divergence of Rights into two classes, rights antecedent to 
wrong, and nghts consequent on wrong, which we have referred to 
a divergence of Titles, flows immediately from the essence of Law, 
and may be deduced from ite definition. 

The essence of every Law is the injunction or prohibition of some 
given act, and the menace of an evil in the case of non-compliance. 
Every law, that is to say, is at once Imperative and Punitory; it is 
only Imperative by being Punitory. So far as law is Imperative, 
it confers primary or sanctioned nghts, and imposes primary or 
sanctioned duties; so far as it is Punitory, it confers secondary or 
sanctioning rights, and imposes secondary or sanctioning duties. 
A primary obligation may be defined as the burden imposed by the 
law in ite first or imperative clause; a secondary obligation as the 
burden imposed by the law in its alternative or punitory clause. 

Sanctioning righte only exist for the sake of Sanctioned rights. 
Accordingly, the latter may be called principal or final, the former 
instrumental or ancillary. So far as the existence of Sanctioned 
rights is dependent on the existence of Sanctioning rights, we 
might invert the epithets primary and secondary, which we have 
applied to them. I have no Sanctioned rights independently of the 
injunction or prohibition which declares that some act or omission 
is a violation of my right, and vindicates it by a Sanction civil or 
enminal. That is, my Sanctioned right or duty owes its existence 
to the injunction or prohibition of certain acte and to the remedy or 
punishment to be applied in case of disobedience. Accordingly, 
though looking at them as means and ends, we have called Sanc- 
tioning rights Secondary and Sanctioned rights Primary; yet if we 
looked at the order of existence, we might call Sanctioning nghts 
Primary and Sanctioned righte Secondary. 

Again, Sanctioning rights and duties are directly enforced by 
the courte, Sanctioned righte and duties only indirectly. Sanc- 
tioning rights and duties are not only immediately enforced, but 
also universally and invariably, except when there is a miscarriage 
of justice. Sanctioned righte and duties cannot be secured from 


6 PRELIMINARY DEFINITIONS. 


violation, even when the administration of justice is perfect: the 
sovereign can only induce, persuade, incline, to the observance of 
primary rights and duties, by holding out the inexorable alternative 
of secondary rights and duties; he cannot compel. As only 
secondary rights are directly enforced by the judicature, it might 
be alleged that these are the only genuine rights; that primary 
rights are merely imaginary, a fiction of philosophic jurisprudence : 
and it must be admitted that some secondary rights are the more 
prominent and constant object of the jurist than the corresponding 
primary rights. Thus the portion of primary rights that here- 
after, as opposed to Acquired rights, we shall call Primordial 
rights (right to life, health, liberty, reputation, etc.) are never so 
much as mentioned by Gaius, nor, so far as I am aware, by any 
Roman jurist, but are only deducible from the corresponding Sanc- 
tioning rights, the rights that arise from violence, assault and 
battery, defamation, and the like. This obscuration of the Primary 
right in comparison with the corresponding Secondary right is, 
however, not invariable. The Primary rights of Status, Property, 
Obligation, are commonly recognized both in popular and juristie 
language as clearly as the corresponding Secondary rights, and we 
are quite justified in extending the division of Sanctioned and 
Sanctioning rights from these types where it is more strongly 
marked through the universal sphere of rights, that is, to those 
regions where the Primary rights have engaged a less amount of 
attention. 

A second fundamental division of rights, common to all legis- 
lations, and ever present to the mind of Roman jurmte, is the 
division into Real and Personal, or jus in rem and jus in personam. 
This division of rights depends on a division of the corresponding 
obligations. Every right residing in one person implies the 
existence of another person or persons on whom a corresponding 
duty is incumbent. The corresponding duty is sometimes incum- 
"bent on & determinate person or persons, sometimes on persons 
indeterminate, in other words, on the world at large. In the 
former case it is usually positive, that is to say, a duty of actual 
performance; in the latter case it is usually negative, that is to 
say, à duty of abstention or forbearance. Jus in personam is a 
right to acts on the part of a certain person, Jus in rem is a right 
to forbearance on the part of all persons. Examples of Real 
right are Status, Franchise, Ownership: examples of Personal 


PRELIMINARY DEFINITIONS. 7 


right are Obligations (in a narrower acceptation than we have 
hitherto assumed) arising from contract or delict. Jus in rem may 
be defined as a right correlating with obligations at once uni- 
versal and negative: Jus in personam a right correlating with 
obligations at once particular and positive. Jus in personam 
implies the relation of debtor and creditor; Jus in rem is the right 
of use and of prohibition; a right of dealing with a thing without 
interference, and of excluding from all similar dealings the rest of 
the world. 

It is to be observed that the expressions Jus in rem and Jus 
in personam are not classical. The classical expressions on which 
they are modelled are actio in rem, actio in personam; action 
to inforce a Real nght, action to inforce a Personal rnght. Juris- 
pradence, however, requires terms to express this leading classi- 
fication of Rights, and, as such terms are not supplied by the 
Roman jurists, the above mentioned, as, though barbarous, they 
seem on the whole to be most eligible, have been adopted, and will 
be employed in the course of this commentary. 

A third important division of Rights is expressed in the terms 
Jara rerum and Jura personarum, rights given by the law of 
Things, and rights given by the law of Persons. But we may 
adjourn the consideration of this division until we examine the 
rights of Status, as we shall immediately proceed to do, Status 
forming the subject of the first book of the Institutions of Gaius. 

The evil which constitutes a Sanction may consist in the loss 
of any of the rights protected by the sovereign. It may be the 
privation of political rights, the privation or diminution of pro- 
perty, or the privation of primordial rights—inearceration, com- 
pulsory labour, banishment, death. 

The motives which sway the legislator in determining the nature 
and amount of the sanction are various. Sometimes the motive 
is simply the reparation of a harm inflicted. Sometimes the appor- 
tionment of the remedy is intended as an inducement to the 
aggrieved party to recur to the public judicature instead of redress- 
ing his own grievance, and, to use a common expression, taking 
the law into his own hands—an urgently pressing motive in the 
infant beginnings of society. Sometimes the end of the lawgiver 
is the prevention of the prohibited act by terrorism, by the menace 
of the sanction and the execution of the menace. Sometimes the 
. sanction is retributive or vindictive, the expression of the conscience 





8 PRELIMINARY DEFINITIONS. 


or moral sentiments of the society. In humane legislations a col- 
lateral end of the sanction is often the reformation of the offender : 
this motive is confined to sanctions of the criminal code. 

To a division of Sanctions corresponds an important division 
of jurisprudence. Some Sanctions may be enforced or remitted 
at the discretion of a private party, others are enforced at the 
discretion of the sovereign or state, and by the sovereign or state 
alone can the liability of the wrongdoer be remitted. This founds 
the division of the code or statute-book into the Civil code and the 
Criminal code. 

But even the Civil code presents, more strongly marked in Roman 
law than in modern systems, a similar division of Sanctions. The 
principal end or object of some Sanctions, as above stated, is the 
redress of injury in the past, compensation or indemnity to the 
injured person for his violated primary right; the end of others 
is the prevention of injury in the future, terrorism, or the deterrence 
of future wrongdoers by exemplary punishment of a past offender. 
On this division of civil sanctions is based the division of civil 
suits into Rei persecutio and Poenae persecutio, a suit to recover 
property, and a suit to recover a penalty. A judgment may be 
bilaterally penal, that is, may both impoverish the defendant and 
enrich the plaintiff; or it may be unilaterally penal, that is, may 
impoverish the defendant without enriching the plaintiff, e.g. in 
a suit for indemnification, when the defendant has not gained in 
proportion to the loss he has inflicted on the plaintiff. A suit 
which is Rei persecutio may be unilaterally penal. Bilaterally 
penal suits, though common in Roman law, are unfrequent in 
.-modern legislations. 

The sanction of a right or obligation, whether primary or 
secondary, is a motive addressed to the will of the person who 
owes the obligation, and is the prevision or anticipation of an 
intending wrongdoer, that his unlawful gain will be extorted from 
him, and commonly, an additional evil, loss, or pain will be in- 
flicted on him by the irresistible power of the sovereign. The 
sanction of the primary obligation is the secondary obligation, and 
it is imaginable that the sanction of the secondary obligation 
should be a tertiary obligation, and so on; but this series of sanc- 
tioned and sanctioning obligations cannot proceed without a limit : 
if it did, every sanction might be defied and every obligation 
broken, and there would be no ultimate basis of obligation. But, 


PRELIMINARY DEFINITIONS. 9 


in fact, the series comes to a speedy end. When once the secondary 
obligation is ascertained by a Judgment or Condemnation, unless 
this judgment is satisfied by a voluntary submission of the party 
condemned, the ultimate sanction soon quits the form of obligation, 
and presents itself in the shape of Execution, that is, of physical 
compulsion, to which the assent of the party obliged is immaterial. 
Indeed, in the criminal code we can scarcely speak of primary and 
secondary obligation, as the sanction usually in the first instance 
assumes the form of physical compulsion. 

One species of Titles and the most important deserves a more 
particular consideration—the Titles which consist of human 
action. 

Human acts are either lawful or unlawful. All unlawful acta of 
course are titles, that is, originate obligations, whether as contra- 
vening the Civil code they are Torts, or as contravening the 
Criminal code they are Crimes. 

Of lawful acts only those are titles, or originate obligations, 
which are designed to produce this effect, and these actions are 
called by the distinctive name of Dispositions. Dispositions (the 
Rechtageschifte of the Germans), then, are permitted actions in- 
tended to generate or extinguish obligations. Dispositions such 
as Testation or Bequest, to make which a single person is com- 
petent, may be called unilateral: Dispositions such as Contract and 
Alienation, which require the coneurrence of two persons (promissor 
acceptor, grantor grantee) who take opposite parte, may be called 
bilateral. ' 

Let us consider some of the contrasts of Wrongful acts (torte or 
crimes) and Dispositions. 

A Disposition produces in the first place a primary obligation : 
a Wrong produces in the first place a secondary obligation. 

Every Disposition involves Intention: a wrong may involve 
either Intention or Negligence. 

Both m Wrongs and in Dispositions the Intention must be 
accompanied by some external act: the mere intention to offend is 
not punishable without an Overt act, and the mere intention to 
dispose without execution produces no legal effect. But the overt 
act which clothes the wrongful intention must have a physical 
character, must be some change in the material universe: the 
external act in which a Disposition is incorporated may be merely, 
and usually is merely, a Declaration, whether Formal, that is, a 


10 PRELIMINARY DEFINITIONS. 


manifestation of intention by some symbolic act prescribed by 
positive law, or Formless, that is, a manifestation of intention by 
any mode which the disposer chooses to adopt. In Roman law 
there is, however, this distinction between Dispositions that pro- 
duce jus in personam or obligation and those that produce jus in 
rem or dominion, that jus in personam is produced by mere declara- 
tion; jus in rem generally requires in addition to declaration a 
certain physical accompaniment, namely, Tradition. 

A further comparison of Wrongs and Dispositions will be facili- 
tated by the employment of certain logical formulas, of which some 
readers may require a brief explanation. 

Every legal phenomenon may be presented in the form of a 
syllogism; that is, may be analysed into three terms, and it is 
useful to accustom ourselves to the analysis. A syllogism, it i 
hardly necessary to say, is resolvable into three terms, whose eom- 
binations compose three propositions, a major premiss, a minor 
premiss, and a conclusion. In the major premises the major term is 
found to be connected with the middle term; in the minor premiss 
the middle term is found to be connected with the minor term: 
in the conclusion the minor term is from these data inferred to be 
connected with the major term. If the major, middle, and minor 
terms are respectively represented by the letters A, B, C, the 
following symbols will give the formula of the syllogism : 


Major premiss : all Bis A; 
Minor premiss : Cis B; 
Conclusion : therefore C is A. 


In the juristic syllogism the middle term B represents a Title, 
i.e. & class, a category, or condition, to which the legislator has 
annexed certain legal consequences, certain rights or obligations; 
which are represented by the major term À ; the major premiss, all 
B is A, representing the law. The minor term C represents certain 
particular persons, plaintiff or defendant, as characterised by certain 
acts or omissions, volitions and knowledge: and the minor premiss, 
C is B, asserts that such actions or omissions bring these parties 
under the category represented by B. The consequent nghts or 
duties of such individual persons are expressed in the conclusion, 
C is À. 

Resuming now our comparison of Wrongs and Dispositions, but 


PRELIMINARY DEFINITIONS. 11 


confining ourselves to intentional wrong (dolus), we observe that 
both in Wrongs and in Dispositions the middle term B of the above 
syllogism is intended (an object of the intention of the offender 
or disposer C): only in Dispositions the major term A as well as 
the middle term B is intended. The wrongdoer desires, purposes 
and intends an event which happens to be one of the Titles B in 
the penal code; but, though undeterred by the menace of the 
legislator, by no means desires or intends the consequences A which 
that code annexes to B. These, on the contrary, he wishes and 
hopes to avoid. The major term intended in the syllogism which 
instipates his action is some other motive, some pecuniary ad- 
vantage, or some pleasure to be gained, or some painful passion 
to be assuaged. In a Disposition, on the contrary, the law, the 
major premiss, B is A, of the forensic syllogism, is a premiss in the 
praetical syllogism which determined the disposer to the step he 
takes. His immediate intention is to bring himself under the 
category B, a Title of the civil code; but he only cares for B as an 
instrument or means to some legal end, as a valid Title whereby he 
can establish certain rights and duties: his ulterior and principal 
intent is by means of B to link himself or some other person to the 
category A. A third end, a further object of intention in every 
disposition, is called the Causa; and is either onerous (solutio or 
obligatio) or lucrative (donatio) Or we may divide the second 
end into immediate and ulterior, and call the ulterior end the 
Causa. 

Both in Wrongs and in Dispositions, to constitute a perfect Title 
that shall generate an obligation, there must be an accord between 
the mtention and the external manifestation. In dolose Wrong the 
intention must accord with the overt act: in unilateral Disposition 
the intention must accord with the Declaration : in bilateral Dis- 
position there must be a further accord between the intentions of 
the two disposers; the intention of the promissor must accord with 
that of the promissee; the intention of the alienor must accord 
with that of the alienee. 

From the preceding it appears that the theory both of Wrongs 
and of Dispositions must be based on a precise conception of the 
nature of Intention. Intentional wrongs, however, are not the sole 
means by which a person incurs penal obligation. The acts im- 
posing secondary obligations are said to be imputable, and for such 
acts the agent is said to be liable, answerable, responsible, ac- 


12 PRELIMINARY DEFINITIONS. 


countable. The grounds or conditions of Imputability are Intention 
(dolus) and Negligence (culpa), 3 § 211. We require, therefore, 
the definitions of Intention and Negligence. 

Desires or wishes either attain their objects immediately and 
instantaneously, or only by the intervention of other objects ante- 
cedently attained. The antecedent object is called a ‘mean,’ the 
consequent or mediate object is called an ‘end.’ If no object were 
immediately attainable, if every mean had to be reached by an 
antecedent mean, if the regression of previous conditions was un- 
limited, all desire would be futile and no end could ever be attained. 
There must be, then, some primary mean, some limit to the series 
of antecedent conditions, some objects of desire attained by a wish. 
What is the nature of these objects, and what is the name of the 
wish by which they are evoked ? 

The only objects that man can realize by a wish are the muscular 
movements of the bodily organs. 

Greek psychology does not appear to have had a proper name for 
the wish which produces a movement of the limbs. Doubtless, the 
words dpefts and ópekróv apply to these wishes and their objects, 
but they apply equally to ulterior ends or motives, and we want a 
term to signify exclusively and distinctively the primary mean. 
Again, zpoalpecis (resolve or resolution) denotes the desire of an 
original mean, but only one species thereof, namely, desire preceded 
by deliberation or premeditation, and we are seeking for a name of 
all desires that are immediately fulfilled, whether premeditated or 
unpremeditated, whether the counsel of reason or the impulse of 
unreflecting passion. For this purpose Will and Volition seem to 
be the most appropriate words that the English language offers. 
Though applicable without impropriety to distant ends, they are 
perhaps more commonly applied to means, and in particular to the 
command we exercise over our bodily frame. We say that we will 
a movement, that the limbs obey the will, that a bodily movement 
follows instantaneously upon a volition. Over whatever regions the 
dominion of the Will may be extended, the direct origination of motion 
in the limbs is its earliest manifestation, and continues its principal 
function to the end of life. Wanting, then, a term to denote the 
wish of an original mean, or rather of an object attainable without 
the intervention of means, we take the generic term Will or Volition, 
and give it a specific signification, denoting thereby the desire 
or wish which is immediately fulfilled, whether such wish be the 


PRELIMINARY DEFINITIONS. . 13 


aimless dictate of a passing emotion or initiate the execution of a 
many-stepped or many-staged and long-considered plan. 

Having fixed the meaning of Volition, we have materials for the 
definition of Intention, which is a correlative of Volition. In 
popular language Intention always implies the contemplation of an 
end. As a condition of responsibility it denotes the contemplation 
of the immediate consequences of those muscular movements which 
are the objects of Volition or determined by Will. The simplest 
action is a complication of a multitude of muscular movements 
produced by a multitude of Volitions. Suppose that certain com- 
plicated muscular movements, the lifting of a pistol, the taking 
aim at a man, the pulling the trigger, are the antecedents of a 
certain event, namely, that a man is shot. If this end was contem- 
plated, the shooting was intentional. Intention is the contempla- 
tion of the consequence or end of bodily movements, and the belief 
or expectation that it will ensue. Or we may define it the com- 
bmation or co-ordination of bodily movements to a contemplated 
and expected or anticipated end. - 

Intention sometimes denotes a remote or ulterior end, the ulti- 
mate motive of a series of subordinate ends; but for our present 
purpose it is confined to the immediate consequences of those 
muscular movements which are the objects of Volition. These 
consequences, according to our definition of Will, are not willed, 
but intended. The movements, being consequences of the volitions, 
that is, standing to them in the relation of end to mean, may be said 
to be both willed and intended. In the generic sense of Will and 
Volition, the consequent is wished, desired, willed (épexrdv, aíperóv) 
as well as the antecedent. Two cases may be distinguished : the 
consequent may be the very motive or inducement of an act, and 
then without doubt it is desired: or it may be of itself regarded 
with aversion, and occasioned with reluctance, and willed only so far 
as it is the mexorable condition of some other event which has been 
determined. But even in this case it may be said to be desired : it 
is a mischief which the actor would fain avoid inflicting, but he 
prefers to cause it rather than forego some other object which he has 
resolved to attain. (So Aristotle decides in the case of the throwing 
overboard of cargo to save a ship from wreck, Eth. Nic. 3, 1.) 

Intention being defined, Negligence, the negation of intention 
and alternative ground of responsibility, will be more easily com- 
prehended. An actor is negligent when he is ignorant of the 





14 | PRELIMINARY DEFINITIONS. 


consequences of his act, if his ignorance proceeds from thoughtlese- 
ness, recklessness, carelessness, want of due attention. Negligence 
is inadvertence to consequences to which a man might have ad- 
verted, and io which he would have adverted had he been desirous 
to obey the law and perform the obligations which it imposes. As 
obligation may either consist in performance or forbearance, so the 
negligent breach of obligation, which we have always spoken of 
hitherto as if it always consisted in commission, may be either 
commission or omission. The word Negligence, indeed, most 
properly designates inadvertence to the consequences of omission 
or inaction. Inadvertence to the consequences of commission may 
be called heedlessness. If the mischievous consequences of an act 
are adverted to, but on insufficient grounds are not expected to 
follow, the neglect of precaution is called temerity or rashness. 

The foregoing definition of Intention agrees with that given by 
Aristotle, except that, instead of singling out one element, the 
consequences, as the object of consciousness, he requires that all the 
elements of an action, the consequences, the degree of force, the 
instrument, the patient or subject, the agent, the act, should be 
present to the mind of the actor, in order to make his conduct 
intentional; although of these ingredients the consequences are 
admitted to be one of the most important. dvros 9 ákovaíov roO 
faíov kal 0v áyvotav, 76 ékotatov ddferev dy elvat ob 7] ápyi) ev aire, 
elddrt rà kaÜ' Exacta év ols 4 npü£is, Ethica Nicomachea, 3, 1, 20. 
(So far the definition only includes the Intentional. To make it 
coextensive with the Imputable we must complete it by adding 
kal Soa Ov duéderay &yvoetv doxotcw, ibid. 3, 5, 9, or, xal Stray év 
éaurp 7 ápxi) 5j rijs ayvolas, ibid. 5, 8, 7.) ‘That is involuntary 
(unimputable) which is caused by external compulsion or by igno- 
rance. That is Voluntary (imputable) whose cause or beginning is 
internal (Will, Volition) with a knowledge of the individual ingre- 
dients which constitute the action, or without this knowledge, if 
the ignorance is produced by negligence—if the agent is to blame 
for his ignorance.” Or we may make the Voluntary inclusive of 
Negligence and coextensive with the Imputable by dividing Know- 
ledge, with the writer of the Eudemian Ethics, into actual know- 
ledge, and possible knowledge. ézet 82 ró éxloracOat kai 7d cidévae 
durrdy, Ev pev 7d Ex ew, dy 06 76 xpHobat rh emornuan, 6 Exwv 1) xpdpevos 
0? ors pey és dexalws àv dyvody A€yatto, or. 8 ds od Quales, olov el 
be ápéAeiav pi] éxpiro... ratr’ otv zpoodiaiperéov, Ethica Eudemia, 


PRELIMINARY DEFINITIONS. 15 


2,9. ‘To know or be aware has two meanings, to have knowledge 
and to use knowledge; so that a man who has knowledge and does 
not use it may be justly said in one sense not to know, in another 
sense to know, if he fails to use it from negligence. . . . This dis- 
tinction, then, must be added to complete the definition of the 
voluntary. The Intentional, then, might be defined to be, that 
which is desired and caused with an explicit knowledge that it would 
be caused, or, with an explicit knowledge of its component elements. 
: Intention (dolus) is either hasty intention (exemplified in áS(xgua), 
including actions impelled by any appetite or emotion, or deliberate 
intention (exemplified in à$w(a), denominated Resolve or Resolution 
(spoatpeots). mpoatperdy 1d éxovotoy rd mTpoBeBovAevuévov, Ethica 
Nic. 8, 2, 17. ‘That is resolved which is voluntary and premedi- 
tated.’ 7 apoalpects àv ely BovAevrua] ópe£is, 1bid. 8, 8, 19. * Reso- 
lution is deliberate volition.’ 

Negligent violation of the law (culpa, ásdprnpa) is distinguished, 
on the one side, from misadventure (casus, drvxna), and, on the 
other, from intentional violation of the law (dolus, á$(kgua), which 
again is distinguished from deliberate violation of the law (dbix(a). 
rp» 33) obcóv BrAaBay trav év rais Kowwvilats, Ta wey per dyvolas 
ápaprijpará éarw, Órav unre Sy, pire ws, pire @, ute ob €vexa vméAaBe, 
raira mpdfin...drav ui) mapaddyas 7) BAGS yévgrav. . . Srav 0? eldas 
uiv pi] wpoBovredoas dé, ddlknua...dray 3° éx mpoaipécews, &d:Kxos «al 
pox0npós, ibid. 5, 8. ‘Of the three gradations of misconduct 
towards others, Fault or Negligence (culpa) is an unlawful act in 
ignorance of the subject, the degree, the instrument, the con- 
sequences, when it was reasonable to expect the mischief; unlawful 
intention (dolus) is breach of law with knowledge of these elements, 
but without premeditation; malice or depravity is evinced by the 
resolution or deliberate intention of violating law.’ 

The distinction between Negligence and Intention, and between 
hasty and deliberate intention, is not so important in the civil code 
as in the criminal code and in the eye of the moralist. The criminal 
code punishes less severely wrongs of inadvertence and crimes com- 
mitted under provocation. But the thoughtless, incautious, im- 
prudent, author of unlawful mischief, although he intended no 
harm, is just as accountable, chargeable, liable to the sanction of 
the civil law, and compellable to make reparation, as if his infrac- 
tion of law was intentional. 

Dolus being defined to be knowledge or consciousness of certain 





16 PRELIMINARY DEFINITIONS. 


facte, and culpa ignorance or unconsciousness of the same facte, are 
clearly two states of mind which must always be opposed. No 
degree of culpa will pass into dolus. Yet several expressions of the 
jurists imply the contrary: e.g. Magnam tamen negligentiam 
placuit in doli crimen cadere, Dig. 44,7,1,5. ‘Gross negligence is 
open to the charge of fraudulent intention.’ But these statements 
only mean that dolus and culpa are often undistinguishable by a 
court of law. The phenomena of gross negligence are precisely 
similar to those of dishonest intention, and it is often impossible for 
2 court to decide which interpretation they ought to bear. Again, 
as the consequences are equally mischievous, there is no reason why 
they should not be subject to the same legal sanction. 

In its signification of deliberate intention Dolus is often used as 
an antithesis of violence and a synonym of Fraud. The reason of 
this is obvious. He who can attain his ends by force does not 
trouble himself with machinations and artful schemes. Wiles and 
plots, when their object is unlawful, usually imply an absence of 
violence and accompany manceuvres to surprise consent. It is in 
this sense that Dolus is defined by Labeo. Labeo sic definit: 
dolum malum esse omnem calliditatem, fallaciam, machinationem, 
ad circumveniendum, fallendum, decipiendum alterum adhibitam, 
Dig. 4, 8, 2. *Labeo defines dolus malus as any craft, imposition, 
machination employed to overreach, delude, deceive, another.’ 
There is, however, no necessary antithesis between deliberate inten- 
tion and violence, and we find that the edict, Si cui dolo malo 
hominibus coactis damni quid factum esse dicetur, Dig. 47, 8, 2, 
* Mischief with dolus malus by men assembled is subject to the same 
penalty as Rapine,’ uses the term to signify premeditated violence. 

There are three principal manifestations of Dolus, a conscious or 
intentional infraction of law: (1) delict, or the violation of a jus 
in rem, accompanied or unaccompanied with violence or intimida- 
tion, and possibly without any treachery or betrayal of confidence, 
e.g. theft or robbery; mala fides, involving a violation of the 
eonfidence necessary to social intercourse: and then either (2) the 
deliberate violation by a debtor of a jus in personam or obligation 
imposed by contract ; in which case Dolus is opposed to Culpa and 
Casus: or (3) any unlawful machination or circumvention leading 
another person to a manifestation of Will, whether bilateral, as a 
contract, or unilateral, as a testamentary disposition, or the accept- 
ance or disclaimer of a succession, &c. Dolus in this form is often 


PRELIMINARY DEFINITIONS.. 17 


called Fraud (fraus); it is ground to support an actio doli and 
in integrum restitutio on account of dolus. 

Malice in English law appears to denote deliberate intention, 
or rather the depravity of disposition or badness of heart (Bua) 
which is assumed to be evidenced by a deliberate unlawful intention.: 
Such at least is its meaning in the definition of murder. Perhaps 
however, it sometimes only denotes unlawful intention (à5(xqna), 
and, as rather belonging to the criminal than the civil code, it may 
be regarded as equivalent to criminal intention. 

In the foregoing analysis of Intention, we have chiefly considered 
it as an ingredient in Torte and Crimes, As entering into Dis- 
position, Intention has essentially the same character: that is to 
say, we must distinguish two stages in an act of will: an imper- 
fect stage which may be called Volition, or an act of will unac- 
companied by knowledge of certain facts; and a perfect stage 
which may be called Intention, or an act of will when accompanied 
and extended by such information. There is only this difference, 
that Offences are physical actions, and the Volition and Intention 
involved in them relate exclusively to muscular movements and 
their immediate consequences: in the analysis of Disposition we 
must substitute for Austin’s statement the broader statement of 
Anstotle, and consider that the Volition and Intention which 
belong to the essence of Disposition relate, not, like those which 
enter into torts and crimes, to a muscular act and the result which 
it produces, but to an external declaration (incorporation) of an 
intended disposition, and either to (A) the whole disposition or to 
(B) certain of the essential elements of the disposition. This may 
be illustrated by examples. 

A. Of dispositions null and void (wanting the essence of true 
dispositions) because Intention is excluded by error relating to 
the whole disposition we have an instance when & man signs one 
document believing it to be another. 

B. The essential elements in respect of which an error excludes 
Intention and avoids the disposition are (1) the Right to be created 
by a disposition, (2) the Person to be invested with a right by a 
disposition, (3) the Thing to be transferred by a disposition. 

l. There is an error in the Right to be created when a promissor 
means a loan and the acceptor means a donation, or vice versa. 

2. There is an error as to the Person who is the object of a dis- 
position ; in a devise, if the testator names one person as devisee 

C 


Tg PRELIMINARY DEFINITIONS. 


when he means another; in a marriage, if one goes through the 
ceremony with a person other than he supposes: in a donation, 
when a donor gives a thing to a person who falsely personates 
the intended donee: in a contract, when an order for a work of 
art is given to a person who falsely personates an eminent artist. 

8, Error respecting the Thing to be conveyed is called (a) error in 
corpore when it relates to an individual thing; as when there is a mis- 
understanding between buyer and seller or other contractors as to 
the specific thing to be conveyed ; and this avoids the contract. When 
a Quantitas, that is, a thing only generically determinate is to be 
conveyed, a misunderstanding sometimes avoids a contract, sometimes 
leaves a valid contract for the lesser of the two quantities intended. 

(5) Sometimes error respecting the Qualities of the thing to 
be conveyed, called inappropriately error in substantia, is held to be 
essential and avoids a disposition: thus a buyer may think a bronze 
vessel to be golden, or a leaden vessel to be silver, or vinegar to be 
wine, or a female slave to be a male slave. In such cases, whenever 
the difference of quality in the judgment of the mercantile world 
would make a commodity different in kind, the error is essential : 
when the difference does not amount to a difference in kind, the 
error is held to be non-essential and does not avoid the disposition. 

Other errors than these three, however closely they may be 
connected with a disposition, and though they may have been the 
principal inducements thereto, are unessential or immaterial and leave 
the disposition valid. Only testamentary dispositions are in some 
cases invalidated by an error in Motive. E. g. the institution of a 
person as successor because & previously instituted suecessor or 
an intestate successor is falsely believed to be deceased: the insti- 
tution of a person as successor because he is falsely believed to be 
& relative: the disinheritance inter ceteros of & son because he is 
falsely believed to be dead: the bequest of property belonging to a 
stranger which the testator believes to be his own; all these testa- 
mentary dispositions are invalidated by error. 

Sometimes Error, though it does not operate so far as to invali- 
date a disposition, yet entitles the disposer to relief at the hands of 
the tribunals, particularly if it was produced by the fraud (dolus) 
of another party. In most countries the mitigation of the strict 
legal consequences of dispositions is the work of that branch of the 
judicature which administers what is called Equity in contrast with 
the tribunals that administer the more rigorous rules of law (jus 


PRELIMINARY DEFINITIONS. 1g 


ipsum). In Rome such relief was given by the praetor in his 
equitable capacity under the forms of Exceptio, Actio, In inte- 
grum restitutio, the natures of which will appear in the course of 
this treatise. It was sometimes, however, given by the courts of 
civil law (jus strictum) ; for instance in the action called condictio 
indebiti soluti. Ifa person aliened property in the mistaken belief 
that he was under an obligation to do so, he could recover it baek 
in the courts of civil law by this action, which belonged to the 
class of personal actions and claimed a'reconveyance of property. 
The nature of the remedy indicates that the error of fact had not 
invalidated the alienation. Otherwise the remedy would not have 
been a condictio claiming a retransfer, but a vindicatio, a real 
action, contending that the property had never been effectually 
aliened, that the intended transfer was inoperative. 

We have seen that ignorance of the specific constituents of an 
action is a ground of exculpation. This must not be extended to 
ignorance of the obligations to which a person is subject under 
certain circumstances, or of the sanctions by which these obliga- 
tions are enforced. Hence the maxim that a party im a suit may 
allege ignorance of fact, but cannot allege ignorance of law. Regula 
est, juris quidem ignorantiam cuique nocere, facti vero ignorantiam 
non nocere, Dig. 22, 9, 6, pr. Sciant ignorantiam facti non juris 
prodesse, nec stultis solere succurri sed errantibus, ibid. $ 5. ‘The 
rule is, that law is known to everybody at his own peril, facts are 
not known to everybody at his own peril ‘ Ignorance of fact may 
be pleaded, not ignorance of law; and relief is accorded to error, but 
not to stupidity.’ The rule is founded on expediency. It would be 
impossible for a court to decide whether a party was really ignorant 
of the law, or, if this could be determined, whether his ignorance 
was inevitable or the effect of negligence. From the impossibility 
of deciding such a plea, it is not allowed to be pleaded, and igno- 
rance of law is always assumed to be a case of Negligence, and 
unworthy of the sovereign’s relief. 

This distinction of Roman jurisprudence is parallel to one indi- 
cated by the Grecian moralist. Ov yàp 7j à» ri mpoaipéces &yvota 
alría rot àxova(ov àAXAà rijs uoxOnp(as, obd’ 3j kaÜóXov (yréyovrat yàp 
dd ye ravrnv), ddd’ 3j Kad’ Exacta év ots kai wept & 7j mpagis. Eth. 
Nic. 8,1. ‘An act is made involuntary neither by ignorance of 
the primary ethical laws, which rather shows utter badness of will 
(dolus); nor by ignorance of general propositions, which also (as 

Cm 


20 PRELIMINARY DEFINITIONS. 


proceeding from negligence) is blameable (culpa); but by ignorance 
of the essential elements and cardinal points of the particular action.’ 
[mpoatpeois here denotes the major premiss (épexrixds voüs, Eth. 
Nic. 6. 1), not the conclusion of deliberation (dpefis d:avonrixy) 
which is the signification defined, Eth. Nic. 3, 3.] 

The parallelism however is not complete between the moral and 
civil code. Ignorance of a civil law is regarded as negligence by 
the civil code, and therefore men are not protected from the civil 
disadvantages they incur in consequence of an ignorant disposition. 
In the moral code ignorance of law is something worse than negli- 
gence; for as the moral laws are merely the dictates of a well- 
disposed will, e. g. such and such actions are detestable, ignorance 
of these laws implies an evil will, i.e. is not culpa but the worst 
form of dolus (dd¢cxla, wovnpfa). There is a closer parallelism 
between the moral code and the criminal code. In the latter the 
character of certain acts depends on a complication of civil and 
penal law, and ignorance of these respective elements is very dif- 
ferently treated by the legislator; e.g. the offspring of a female 
slave in whom a man has a usufruct (life estate) belongs not to the 
usufructuary (tenant for life) but to the reversioner. If then the 
usufructuary appropriates such offspring, is he guilty of Theft 
and subject to the sanction annexed to Theft in the criminal code ? 
Not if he was ignorant of the purely civil law that assigns to the 
reversioner the property in the issue of a usufructuary slave, for 
such ignorance is suffieient to exclude intentional misappropriation, 
Again, if the usufructuary seized and carried off with violence the 
progeny of the slave, he would not be liable for Rapine, which in- 
volves dolus, but he would be liable to the interdict against Vio- 
lence, and would not be allowed to plead ignorance that the 
violent remoyal of one’s own property was interdicted. Again, the 
defendant in a rei vindicatio or hereditatis petitio is liable to 
certain penalties for mala fide possession, and cannot plead igno- 
rance of this penal law; bnt may plead ignorance of some purely 
civil law respecting property or succession, and show that such 
ignorance made him a bona fide possessor. The criminal code, 
then, admits the plea of ignorance of civil law ; but does not admit 
the plea of ignorance of the criminal law itself; that is, of the law 
prohibiting and punishing Theft, Violence, and Mala fide posses- 
sion. It does not admit any more than the moral code that such 
ignorantia juris excludes the existence of dolus or deliberate wrong. 


PRELIMINARY DEFINITIONS. 21 


- The knowledge of law, however, which everybody is presumed to 
possess, does not exist as a matter of fact, even among the well- 
disposed. All systems of law are more or less irrational, and con- 
tain many provisions which are hardly surmisable by any but 
professional lawyers. To mitigate the injustice that the maxim 
would often produce, the Roman jurisís admitted an exception in 
favour of women, minors below the age of twenty-five, and soldiers. 
These classes were permitted to plead ignorance of the law, except 
the obvious dictates of Natural law, and were relieved against 
the forfeitures and obligations thereby incurred. These classes 
were excused for ignorance of the more positive and arbitrary 
portions of the penal code. Thus women and minors are ex- 
cused for ignorance of the incestuous nature of marriage with 
collaterals ; but are not excused for violating the law against mar- 
riage with ascendants or descendants, a law which is a precept of 
jus gentium. 

Besides the term Ignorance or Error, the above-quoted definition 
of the Voluntary and Involuntary contains the term Force (Vis); 
we accordingly require a precise conception of Force. Force is of 
two kinds, Vis absoluta, and Vis compulsiva. Vis absoluta is 
physical force, superseding the Volition of the agent in the pro- 
duction of an effect ; as, for instance, when a person forces another 
to sign a document by holding and guiding his hand; and such 
force makes an act Involuntary. Vis compulsiva, Compulsion or 
intimidation (metus), e.g. inducing a man to sign by means of 
threats, leaves an action Voluntary. Of such cases Aristotle says : 
puxtal pev oby eloly al roratra: mpá£ets, dolxact 96 wGdAov éExovalors. 
Eth. Nic. 3,1. ‘Such acts have a mixed character, but if we are 
driven to decide we must pronounce them to be Voluntary.’ Here 
again we find an exact accordance between philosophic speculation 
and Roman jurisprudence, and, speaking of such cases, the Roman 
jurist says with admirable precision, Coactus volui: i.e. It was 
under duress, perhaps, but the fact remains that finally the will 
assented, and the action must be regarded as Voluntary. Si metu 
coactus adii hereditatem, puto me heredem effici, quia, quamvis si 
liberum esset noluissem, tamen coactus volui. Sed per praetorem 
restituendus sum ut abstinendi mihi potestas tribuatur. D. 4, 2, 
21, 5. ‘If fear compelled me to declare that I accepted a suc- 
cession, I really beeame the successor, because, though in the 
absence of danger I should have declined, yet under duress I havg 


22 PRELIMINARY DEFINITIONS. 


accepted. The praetor, however, will rescind my act, and restore 
me to my former position and power of abstention.’ Such actions 
are both Volitional (for the motor organs are set in motion by 
Volition) and Intentional, for Volition is accompanied by full 
knowledge of the character and consequences of the motion pro- 
duced. Accordingly the Force that enters into the definition of 
the Voluntary and Involuntary is limited to Vis absoluta and is 
thus defined : Blacoy 82 ob 4 àpy3) E£o0ev, roratrn otoa àv jj pndey ovp- 
BdAXerat 6 mpárrov 1) 6 mdoxev, ibid. ; or, Zoe 33) ró Blasoy elvar ob 
EEwdev 4) àpy3) ub?» cvpBadrdopévov rod Biacdévros. ibid. ‘ Force 
that makes involuntary is an external efficient, causing an action 
without the concurrence of the Volition of the agent or, as he may 
be called, the patient.’ 

Although Compulsion does not exclude Volition and Intention, 
and consequently avoid a disposition, still, as we saw was the case 
with Error, it may entitle the victim to relief; the terms, however, 
in which the legislator promises relief imply that a Compulsory 
disposition is originally valid and operative, and, in order to be 
made null and void, requires to be rescinded: Ait praetor, Quod 
metus causa gestum erit ratum non habebo. D. 4, 2, 1. ‘ Disposi- 
tions made under the influence of intimidation shall be rescinded 
(by Exception, Action, or Integral restitution), The term Gestum 
or Negotium gestum is only applied to valid dispositions, and, 
indeed, as was observed, an invalid or inoperative disposition would 
not require to be rescinded by the supreme minister of justice. 

The last general term that we propose to notice is Institution, 
An Institution (e. g. Property, Obligation, Slavery, Tithe, Advow- 
son) is the same thing as a Right or Obligation, but the one is 
abstract, the other concrete. The relation of Institutions to Rights 
and Obligations may be elucidated by the syllogism we have already 
indicated. An Institution is the major term A, as the predicate 
of the major premiss, or as existing in the abstract sphere of the 
law: a Right or Obligation is the same major term A, as the 
predicate of the conclusion, or as existing in the concrete sphere of 
fact. Or perhaps with equal propriety we may identify Institu- 
tions (e.g. Alteration of property by tradition, Imposition of 
obligation by written contract, Acquisition of an inheritance by 
descent), with the middle term B as subject of the major premiss, 
i.e. as having a permanent existence in the universal law: the 
same middle term B as predicate of the minor premiss, i.e. as 


PRELIMINARY DEFINITIONS. 23 


having a transitory existence under special limitations of time and 
place and persons, is a Title. (Compare Savigny, System, § 384.) 
In either case the term Institution connotes constancy and per- 
manence, just as when it is used im another sense to denote the 
monarch, or legislative body, or tribunals, or any other permanent 
organs destined to perform certain constantly recurring functions. 

If we are asked, what in Jurisprudence are the ideas correspond- 
ing to the categories of Substance, Quality, Quantity, Relation, or 
whatever else Logicians make the immutable framework of their 
science, we must point to some of the above abstractions—Law, 
Sovereign, Sanction, Obligation, Title. Without these and similar 
conceptions no jurisprudence can be imagined. And to this extent 
the bases of jurisprudence are natural and unchangeable, but to 
this extent only. Jurisprudence has nothing corresponding to the 
precise and unalterable special conceptions that furnish the first 
principles of the mathematician. All the particular institutions 
that fall under the above-named highest categories are positive, 
that is, arbitrary and variable. While Dogmatic jurisprudence 
fixes its attention on whatever is most constant or most perfect in 
legislative arrangements or what might be found in an ideal state, 
Historic and Comparative jurisprudence chiefly bring before our 
notice what is variable in civil institutions. Let us now throw 
a rapid glance over Roman law in order to indicate the extent of 
these mutations in its civil code, though in so doing we shall be 
forced to use by anticipation certain technical terms whose explana- 
tion must be left to the course of the following treatise. 

It is unnecessary to dwell on the mutations in the code of Pro- 
cedure, that is, in the forms of Action, or modes prescribed by the 
legislator for the enforcement of sanctioning nights. 

The Substantive code may seem more permanent, but this too 
changes entirely in the fundamental conceptions of its titles and 
institutions. 

Forms of Disposition, i.e. the voluntary Titles by which the 
subject may establish certain rights and obligations put within his 
reach by the sovereign, disappear after flourishing for centuries, 
like types of animal life. New ones are introduced and old ones are 
abolished. Witness the abolition of Testamentum comitiis calatis, 
Confarreatio, In jure cessio, Nexum, Mancipatio, Literal obligation, 
and the introduction of the corresponding forms of later law. 

Not only do Titles change; the Rights and Obligations linked 





24 . PRELIMINARY DEFINITIONS. 


to these Titles are transferred in their fundamental conception. A 
glance at the law (1) of Family, (2) of Property, (3) of Succession, 
(4) of Obligation will convince us of this. 

(1) The loss by paterfamilias of the power of life and death over 
wife and children was an essential change in Manus and Patria 
potestas. The introduction of tutor dativus and tutor Atilianus did 
not affect the nature of Guardianship: but its change from a 
private right (jus ac potestas) to a public duty was a transforma- 
tion of its essence. 

(2) The abolition of Mancipatio and In jure cessio and the ex- 
tension of the period of Usucapio did not change the idea of 
Ownership; but at an earlier period society was revolutionized 
when common ownership was superseded by private ownership. 

(8) The substitution of written instead of oral wills, and the 
introduction of military or privileged wills, did not change the 
nature of the right of Testation: but the earlier change from the 
Comitial to the Mancipatory will was essential; for whereas before 
to exclude intestate devolution an act of the legislature was required, 
afterwards a solemn Disposition by & private individual sufficed. 
Again, the nature of a universal Trust (fidei-commissum) instituted 
by the Senatus-consultum Trebellianum was not essentially changed 
by the Sc. Pegasianum: but the introduction of Codicils was an 
essential change in testation ; for it introduced partial dispositions 
in a sphere where formerly the legislator only permitted universal 
dispositions. And Justinian’s benefice of inventory, entirely 
changing the character of the heres, was another fundamental 
change in hereditary succession. 

(4) Promises assumed a new character at the prehistoric period 
when they passed from the moral to the legal code; and after the 
historic period obligations continued to be modified in proportion 
as the growing ascendancy of aequitas over jus strictum enabled 
the tribunals to conform more closely to the presumable intentions 
of a wise legislature. But the most remarkable innovation in this 
department was the modern invention of paper obligations (papers 
payable to the bearer or holder), whereby obligation, otherwise 
incapable of detachment from the person of the original creditor, 
became as transferrible by singular succession from creditor to 
creditor as property is from proprietor to proprietor. (See Ihering, 
Geist des Roemischen Rechts, on the variability of the institutions of 
the civil code. 


DE IVRE CIVILI ET NATVRALI. 


(i. DE IVBE CIVILI ET NATVRALI.] 


$ 1. Omnes populi qui legibus et 
moribus reguntur, partim suo pro- 
prio, partim communi omnium ho- 
minum iure utuntur. nam quod 
quisque populus ipse sibi ius con- 
stituit, id ipsius proprium est uo- 
caturque ius ciuile, quasi ius pro- 
prium ciuitatis; quod uero naturalis 
ratio inter omnes homines con- 
stituit, id apud omnes populos per- 
aeque custoditur uocaturque ius gen- 
tium, quasi quo iure omnes gentes 
utuntur. populus itaque Romanus 
pertim suo proprio, partim communi 
omnium hominum iure utitur. quae 
singula qualia sint, suis locis pro- 
ponemus. 

$ 2. Constant autem iura populi 
Romani ex legibus, plebiscitis, sena- 
tusconsultis, constitutionibus prin- 
cipum, edictiseorum qui ius edicendi 
habent, responsis prudentium. 

§ 3. Lex est quod populus iubet 
atque constituit. Plebiscitum est 
quod plebs iubet atque constituit. 
plebe autem a populo eo distat, quod 
populi appellatione uniuersi ciues 
significantur, connumeratis etiam 
patriciis; plebis autem appellatione 
sine patriciis ceteri ciues signifi- 
cantur; unde olim patricii dice- 
bant plebiscitis se non teneri, quia 
sine auctoritate eorum facta essent ; 
sed postea lex Hortensia lata est, 
qua cautum est ut plebiscita uni- 
uersum populum tenerent; itaque 
eo modo legibus exaequata sunt. 


$ 4. Senatusconsultum est quod 
senatus iubet atque constituit, id- 
que legis uicem optinet, quamuis 
fuerit quaesitum. 


$5. Constitutio principis est 
quod imperator decreto uel edicto 


26 
ON CIVIL LAW AND NATUBAL LAW. 


$ 1. The laws of every people 
governed by statutes and customs 
are partly peculiar to itself, partly 
common to all mankind. The rules 
enacted by a given state for its own 
members are peculiar to itself, and 
are called civil law; the rules 
prescribed by natural reason for all 
are observed by all nations alike, 
and are called gentile law. Sv the 
laws of the people of Rome are 
partly peculiar to itself, partly com- 
mon to all nations; and this dis- 
tinction shall be traced, as occasion 
offers, through all the branches of 
the code. 


$ 2. Roman law consists of sta- 
tutes, plebiscites, senatusconsults, 
constitutions of the emperors, edicts 
of magistrates authorized to issue 
them, and opinions of jurists. 

§ 3. A statute is a command and 
ordinance of the people: a plebi- 
scite is a command and ordinance 
of the commonalty. The common- 
alty and the people are thus distin- 
guished: the people are all the 
citizens, including the patricians ; 
the commonalty are all the citizens, 
except the patricians. Whence in 
former times the patricians main- 
tained that they were not subject 
to the plebiscites, as passed without 
their authority; but afterwards a 
statute called the lex Hortensia 
was enacted, which provided that 
the plebiscites should bind the - 
people, and thus plebiscites were 
made coordinate with statutes. 

$ 4. A senatusconsult is a com- 
mand and ordinance of the senate, 
and is assimilated in force to a 
statute, a point which was formerly 
controverted. 

§ 5. A constitution is an ordi- 
nance of the emperor by decree, 


26 


uel epistula constituit. nec umquam 
dubitatum est, quin id legis uicem 
optineat, cum ipse imperator per 
legem imperium accipiat. 


$ 6. ———————————— 
lus autem edicendi habent magi- 
stratus populi Romani; sed am- 
plissimum ius est in edictis du- 
orum praetorum, urbani et pere- 
grini quorum in prouinciis iuris- 
dictionem praesides earum habent; 
item in edictis aedilium curulium, 
quorum iurisdictionem in prouinczis 
populi Romani quaestores habent; 
nam in prouincias Caesaris omnino 
quaestores non mittuntur, et ob id 
hoc edictum in his prouinctis non 
proponitur, 


$ 7. Responsa prudentium sunt 
sententiae et opiniones eorum qui- 
bus permissum est iura condere. 
quorum omnium si in unum sen- 
tentiae concurrent, id quod ita sen- 
tiunt, legis uicem optinet; si uero 
dissentiunt, iudici licet quam uelit 
sententiam sequi; idque rescripto 
diui Hadriani significatur. 


DE PERSONIS. 


[1. $$ 1-7. 


edict, or letter; and was always 
recognized as having the force of 
a statute, as the statute which in- 
vests the emperor with his office 
confers upon him the whole power : 
of the people. 


§ 6. Power to issue edicts is 
vested in magistrates of the people 
of Rome, the amplest authority be- 
longing to the edicts of the two 
praetors, the home praetor and the 
foreign praetor, whose provincial 
jurisdiction is vested in the pre- 
sidents of the provinces, and to the 
edicts of the curule ediles, whose 
jurisdiction in the provinces of the 
people of Rome is vested in quaes- 
tors : in the provinces of the empe- 
ror no quaestors are appointed, and 
in these provinces, accordingly, the 
edict of the ediles is not published. 

$ 7. The answers of jurists are 
the decisions and opinions of persons 
authorized to interpret the law. If 
they are unanimous their decision 
has the force of law; if they dis- 
agree, the judge may follow which- 
ever opinion he chooses, as is ruled 
by a rescript of the late emperor 

n. 


I. $1. Junsprudence treats exclusively of positive law: the 


exclusive origin of positive law is positive legislation; the term 
positive legislation including both the express or direct enactments 
of the political sovereign, and the implied, indirect, cireuitous enact- 
ments imported by the sovereign’s acquiescence in the ruling of 
subordinate authorities. 

The rules and principles denoted by the terms praetor-made law, 
jurist-made law, judge-made law, are only law because they are 
impliedly adopted, confirmed, and ratified by the silent acquiescence 
of the sovereign legislature. 

The organ by which the Jus gentium of the Romans was pro- 
mulgated, which made it by quasi enactment a portion of Roman 
Positive law, was principally the Edict of the Praetor peregrinus. 
The relations of Roman citizens with aliens (peregrini), that is, with 
the members of foreign states formerly subjugated by Rome and 


1.§§1-7.] DE IVRE CIVILI ET NATVRALI. 27 


now living under the protection of Roman law, were subject to the 
jurisdiction of a special minister of justice called Praetor peregrinus, 
who, like the Praetor urbanus, published an annual edict an- 
nouncing the principles on which justice would be administered. 
These principles composed: Jus gentium as opposed to Jus civium, 
Jus gentium, that is to say, was not really, as Roman jurists 
imagined or represented, a collection of the principles common to 
the legislation of all nations, but a body of rules which the Roman 
praetor thought worthy to govern the intercourse of Roman citizens 
with the members of all, originally independent but now subjects 
foreign nations. Accordingly, if for the definition given by Gaius 
we substitute the definition * Quod edicto suo praetor peregrinus 
omnibus gentibus constituit, we shall be much nearer the truth. 

Gradually the rules regulating the intercourse of citizens with 
aliens were extended to the intercourse of citizens with citizens, 
in cases where the rigorous conditions of jus civile were not exactly 
satisfied, and the precepta of Jus gentium were transferred from the 
edict of praetor peregrinus to the edict of praetor urbanus, 

Another organ of quasi publication, whereby the rules of jus 
gentium were transformed from ideal law to positive law—from 
laws of Utopia to laws of Rome— were the writings of the jurists, 
who, at first with the tacit, afterwards with the express permission 
of the legislature, engaged, nominally in interpreting, really in 
extending the law, about the time of Cicero (De Legibus, § 1, 5), 
transferred to the edict of the praetor the activity which they had 
formerly displayed in developing the statutes of the Comitia and 
the law of the Twelve Tables. 

The portion of the edict most fertile in germs of natural law 
would be the clauses in which the praetor announced, as he did 
in some cases, that he would instruct the judex, whom he appointed 
to hear and determine a controversy, to govern himself by a 
consideration of what was aequum et bonum, i.e. by his views of 
equity and expediency: and if any of the oral formularies of the 
earliest system of procedure (legis actiones) contained these or 
equivalent terms, such formularies may be regarded as a third 
source of Gentile or Natural law. 

Jus civile, i.e. jus civium, was the law of the Twelve Tables, 
augmented by subsequent legislation, by juristic interpretation, and 
by consuetudinary law. The institutions of jus civile may be 
exemplified by such titles to property as Mancipatio and In 


28 00 DE PERSONIS. [8 1-7. 


Jure Cessio, contracts by the form of Nexum and Sponsio, title 
to intestate succession by Agnatio or civil relationship; while 
corresponding institutions of jus gentium were the acquisition of 
property by Tradition, contract by Stipulation without the solemn 
term Spondeo, title to intestate succession by Cognatio or natural 
relationship. Other departments of life were not subject to parallel 
institutes of Civil law and Natural law, but the mutual relations of 
citizens with citizens as well as of citizens with aliens were exclu- 
sively controlled by Gentile law: eg. the contracts called Con- 
sensual, such as buying and selling, letting and hiring, partnership ; 
and contracts called Real, such as the contract of loan for use or 
loan for consumption. 

Gentile titles to Property (jus in rem), titles which ultimately 
superseded civil titles, are explained at large in Book II. 

In respect of Obligation (jus in personam), Gentile law may be 
divided into two classes, according to the degree in which it was 
recognised by Civil law :— 

A. A portion of Gentile law was recognised as a ground of 
Action. To this class belong (1) the simple or Formless contracts 
to which we have alluded, (2) obligations to indemnify grounded 
on delict, (3) right quasi ex contractu to recover property when it 
has been lost by one side and gained by the other without any 
title, Dig. 12, 6, 14, and Dig. 25, 2, 25. Actions founded on this 
obligation to restore (condictiones), although it was a naturalis 
obligatio, Dig. 12, 6, 15, were as rigorous (stricti juris) as any in 
the Civil code. In these cases the obligatio, though naturalis as 
founded in Jus gentium, yet, as actionable, was said to be civilis 
obligatio, Dig. 19, 5, 5, 1. 

The two eminently Civil spheres of the law of obligation were 
(1) speciality or Formal contracts, and (2) bilaterally penal suite. 
Yet even into these provinces Gentile law forced a partial entrance. 
We shall see that aliens could be parties to a Stipulatio or Verbal 
contract, though not by the Civil formulary, Spondeo 8 § 93; and 
to Transeriptio 8 $ 188, and Syngrapha 3 § 184, certain forms 
of Literal contract; and could be made plaintiffs or defendants in 
bilaterally penal suits by means of the employment of certain 
Fictions, 4 § 37. This, however, was rather the extension of 
Civil law to aliens than the intrusion of Gentile law into a Civil 
province. 


. B. Other rights and obligations of Gentile law were not ad- 


t. $6 1-7.] DE IVRE CIVILI ET NATVRALI. 29 


mitted as direct grounds for maintaining an action, yet were other- 
wise noticed by the institutes of Civil jurispradence and indirectly 
enforced. Thus a merely naturalis obligatio, though not action- 
able, might (1) furnish a ground of an equitable defence (exceptio) : 
for instance, on payment of & merely natural debt the receiver has 
a right of retention, and can bar the suit to recover it back as a 
payment made in error (condictio mdebiti soluti) by pleading the 
naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a 
clam by Compensatio, 4 § 61, cross demand or set-off, of a debt 
that merely rests on naturalis obligatio, Dig. 40, 7, 20, 2: or a 
naturalis obligatio might (2) form the basis of an accessory obliga- 
tion, such as Suretyship (fidejussio) Dig. 46, 1, 6, 2, or Guaranty 
(constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5, 
pr. or Novation, 3 § 176, Dig. 46, 2, 1, 1, all Civil institutions 
and direct grounds of action. Though these rights and obligations 
of Gentile law are imperfect (obligatio tantum naturalis) as not 
furnishing immediate grounds of action, yet, as being partially and 
indirectly enforced by Roman tribunals, they clearly compose a 
portion of Positive law. Cf. 3 §§ 88, 89 comm. 

Plebiscites as well as the enactments of Comitia Centuriata were 
called Leges, and were named after the tribunes by whom they 
were carried, as the leges proper (rarely called populiscita) were 
named after the consul or dictator by whom they were carried. 
Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst. 2, 6, 2, 
Lex Furia testamentaria, 2 § 225, were plebiscites named after 
tribunes, the Lex Valeria Horatia was named after two consuls, the 
Lex Publilia and Lex Hortensia were named after dictators. 

§ 4. The legislative power of the senate was in the time of 
the republic a matter of controversy. It is certain that it had 
& power of issuing certain administrative decrees or instructions 
to magistrates that was hardly distinguishable from legislation. 
Under the emperors matters were changed. Legislation by the 
Comitia, though spoken of by Gaius in the present tense, had 
ceased to be a reality after the time of Tiberius, and the last 
recorded lex was passed in the reign of Nerva. As early as the 
time of Augustus the auctoritas of the senate began to be regarded 
as the essential process in making a law, and the subsequent 
rogatio of the Comitia as a mere formality, which was finally 
omitted. Senatusconsults, like laws, were sometimes named after 
the consuls who proposed them, and are sometimes even called 








30 | DE PERSONIS. Ta. §§ 1-7. 


leges: thus the measure which Gaius calls Sc. Claudianum, 1 § 84, 
is subsequently referred to by him under the name of lex, 1 § 86. 
Ulpian says, Non ambigitur senatum jus facere posse, Dig. 1, 8, 9, 
fit is unquestioned that what the senate decrees becomes part of 
the civil law.’ Of course, these senatusconsults were merely a 
disguised form of imperial constitution. The sovereignty had 
passed from both patricians and plebeians to the hands of an 
autocrat. A measure was recommended by the emperor in an 
oratio or epistola to the senate, and then proposed by the consul 
who convoked the senate, and voted by the senate without oppo- 
sition. Even this form was finally disused. No senatusconsult 
relating to matters of civil law occurs after the time of Septimius 
Severus. 

§ 5. The nature of the different forms of imperial constitution 
has been much controverted, and certainly varied at different 
periods. They may be characterized as legislative, judicial, and 
interpretative. 

Edicts were legislative ordinances issued by the emperor in virtue 
of the jurisdiction appertaining to him as highest magistrate, and 
were analogous to the edicts of the praetors and ediles. In the 
time of Gaius they had only binding force during the life of the 
emperor who issued them, requiring the confirmation of his successor 
for their continuing validity; but from the reign of Diocletian 
their duration ceased to be thus limited. 

Decreta were judicial decisions made by the emperor as the 
highest appellate tribunal: or in virtue of his magisterial jurisdic- 
tion, and analogous to the extraordinaria cognitio of the praetor. 

Epistolae or rescripta were answers to inquiries addressed to the 
emperor by private parties or by judges. They may be regarded 
as interpretations of law by the emperor as the most authoritative 
juris peritus. Cf. $ 94 comm. 

The words of Gaius explaining why constitutions had the force 
of law seem to be imperfect, and may be supplemented from 
Justinian; Sed et quod principi placuit legis habet vigorem : cum 
lege regia, quae de imperio ejus lata est, populus ei et in eum omne 
guum imperium et potestatem concessit, Inst. 1, 2, 6. ‘Imperial 
constitutions have the effect of law, because by the lex regia, 
whereby the emperor is invested with his office, the people confers 
on him all its sovereignty and power,’ The lex imperii, Cod. 6, 
29, 3, was called by later jurists lex regia, in memory of the 


1.8 1-7.] DE IVRE CIVILI ET NATVRALI. 81 


lex euriata, whereby the kings were invested with regal power. 
The king was proposed by the senate and elected by the Comitia 
Curiata, and the election was ratified in a second assembly pre- 
sided over by the king; e.g. Numam Pompilium regem, patribus 
auctoribus, sibi ipse populus adscivit, qui ut hue venit, quanquam 
populus curiatis eum comitis regem esse jusserat, tamen ipse de 
suo imperio curiatam legem tulit, Cie. De Republ. 2, 18. A frag- 
ment of a bronze tablet, on which was inscribed the lex investing 
Vespasian with sovereign powers, was discovered at Rome in the 
fourteenth century, and is still preserved in the Capitol. 

$6. Huschke points out that the vacant space in the MS. before 
Jus probably contained a definition of Edicta. 

All the higher magistrates of Rome were accustomed to issue edicta 
or proclamations. Thus the consuls convoked the comitia, the army, 
the senate, by edict: the censors proclaimed the approaching census 
by edict: the ediles issued regulations for the market by edict: 
and magistrates with jurisdiction published edicts announcing the 
rule they would observe in the administration of justice, the 
Edicts of the Praetor urbanus, Praetor peregrinus, Aedilis curulis 
being called Edicta urbana, while the Edicts of the governors 
of provinces were called Edicta provincialia. These edicts, besides 
being orally proclaimed, were written on white tablets (in albo) 
and suspended in the fornm: apud forum palam ubi de plano 
legi possit, Probus, ‘in the forum in an open space where persons 
standing on the ground may read. Such an edict was always 
published on entering on office (est enim tibi jam, cum magi- 
stratum inieris et in concionem adscenderis, edicendum quae sis 
observaturus in jure dicendo, Cie. De Fin. 2, 22), and was then 
called Edictum perpetuum, as opposed to occasional proclamations, 
Edictum repentinum. A clause (pars, caput, clausula, edictum) 
retained from a former edict was called Edictum tralatitium, 
Gellius, 8, 18; and though doubtless the edicts gradually changed 
according to changing emergencies, each succeeding praetor with 
very slight modifications substantially reproduced the edict of his 
predecessor. In the reign of Hadrian the jurist Salvius Julianus, 
called by Justinian Praetoriani edicti ordinator, reduced the edict 
to its definite form, and if the yearly publication was not dis- 
continued (cf. Gaius, jus edicendi habent), at all events Julian’s 
coordination of Praetorian law was embodied in all subsequent 
publications. Such was the origin of Jus honorarium (praetorium, 


32 "DE PERSONIS. [x. §§ 1-7. 


aedilicium), as opposed to Jus civile: and from what has pre- 
ceded, it needs hardly be stated that the antithesis, Jus civile, Jus 
honorarium, is nearly coincident with the antithesis, Jus civile, Jus 
gentium. 

It may be observed that Gaius does not attribute to edicts the 
force of a statute: and this theoretical inferiority of Jus hono- 
' yarium, for after all it was only theoretical, had a vast influence 
in modelling the forms and proceedings of Roman jurisprudence. 
The remedy or redress administered to a plaintiff who based his 
claim on Jus civile differed from that administered on an appeal to 
Jus honorarium, as we shall see when we come to treat of Bonitary 
ownership, Bonorum possessio, Actio in factum, Exceptio. This 
difference of remedy preserved Jus civile pure and uncontaminated, 
or at least always distinguishable from Jus honorarium; but this 
perpetuation of the memory of the various origins of the law, like 
the analogous distinction of Equity and Common law in English 
jurisprudence, was purchased by sacrificing for an insufficient object. 
simplicity of rule and uniformity of process. 

The legislative power of the popular assembly and the absence 
of legislative power in the senate and praetor were marked by a 
difference of style in the lex and plebiscite, edict, and decree of 
the senate: while the lex and plebiscite employed the imperative 
(damnas esto, jus potestasque esto, &c.), the resolutions of the senate 
scrupulously avoid the imperative and are clothed in the forms 
placere, censere, arbitrari, &c., as if they were rather recommen- 
dations than commands: and the edicts and the interdicts of the 
praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a 
milder form of imperative. Or to show that their force and opera- 
tion is limited to his own tenure of office, they are expressed in the 
first person (actionem dabo, ratum habebo, vim fieri veto). Where 
he has authority to command he shows it by using the imperative, 
as in addressing the litigants (mittite ambo hominem, inite viam, 
redite, 4 $ 18 com.) or the judge (judex esto, condemnato, absolvito). 
Ihering, § 47. 

In the first period of the empire, that is, in the first three 
centuries of our era, it was the policy of the emperors to maintain 
a certain show of republican institutions, and the administration 
of the empire was nominally divided between the princeps or 
emperor and the people as represented by the senate. Thus, at 
Rome there were two sets of magistrates, the old republican 


1.§§ 1-7] DE IVRE CIVILI ET NATVRALI. 83 


magistrates with little real power, consuls, praetors, censors, tri- 
bunes, quaestors, in outward form elected by the people; and the 
imperial nominees with much greater real authority, under the 
name of praefecti, the praefectus urbi, praefectus praetorio, prae- 
fectus vigilum, praefectus annonae, praefectus aerario; for though 
nominally the people and princeps had their separate treasuries 
under the name of aerarium and fiscus, yet the treasury of the 
people was not managed by quaestors as in the time of the 
republic, but by an official appointed by the emperor. Similarly 
the provinces were divided between the people and the prince, 
the people administering those which were peaceful and unwarlike, 
the prince those which required the presence of an army. The 
governor of a province, whether of the people or the emperor, was 
ealled Praeses Provinciae, though the title properly belonged to 
the governor of an imperial province. The Praeses of a popular 
province was a Proconsul, and the chief subordinate functionaries 
were Legati, to whom was delegated the civil jurisdiction, and 
quaestors, who exercised a jurisdiction corresponding to that of 
the ediles in Rome. The emperor himself was in theory the Pro- 
consul of an imperial province; but the actual governor, coordi- 
nate with the Proconsul of a senatorial province, was the Legatus 
Caesaris, while the financial administration and fiscal jurisdiction 
were committed to a functionary called Procurator Caesaris, instead 
of the republican Quaestor. Sometimes the same person united 
the office of Procurator and Legatus, as, for instance, Pontius 
Pilate. 

§ 7. The opinions of a jurist had originally only the weight that 
was due to his knowledge and genius; but on the transfer of 
sovereign power from the hands of the people to those of a monarch, 
the latter recognized the expediency of being able to direct and 
inspire the oracles of jurisprudence; and accordingly Augustus 
converted the profession of jurist into a sort of political function, 
giving the decisions of certain authorized jurists the force of law, 
Dig. 1, 2, 47. * Until Augustus, the public decision of legal ques- 
tions was not a right conferred by imperial grant, but any one who 
relied on his knowledge advised the clients who chose to consult 
him. Nor were juristic opinions always given in a letter closed 
and sealed, but were generally laid before the judge in the writing 
or by the attestation of one of the suitors. Augustus, in order 
to increase their weight, enacted that they should be clothed with 

D 


84 — DE PERSONIS. - [1. $$ 1-7. 


his authority, and henceforth this office was sought for as an 
nnperial favour. Compare Inst. Just. 1, 2, 8, Those jurists 
who had the Jus respondendi were called Juris auctores. "Their 
auctoritas resided, in the first instance, in their responsa, or the 
written opinions they gave when consulted on a single case; 
but in the second instance, doubtless, in their writings, which 
in fact were mainly a compilation of their responsa, a fact which 
has left its traces in the disjointed and incoherent style which 
disagreeably characterizes Roman juristic literature. In the course 
of centuries the accumulation of juristic writings of coordinate 
authority was a serious embarrassment to the tribunals. To remedy 
this evil, a.p. 426, Theodosius and Valentinian enacted what is 
called the law of citations, Cod. Theodosianus, 8, limiting legal 
authority to the opinions of five jurists, Gaius, Papinian, Ulpian, 
Paulus, Modestinus, and of any other jurists whom these writers 
quoted, provided that such quotations should be verified by refer- 
ence to the original writings of these juris auctores. In case of 
& divergence of opinion, the authorities were to be counted, and the 
majority was to prevail. In case of an equal division of authorities, 
the voice of Papinian was to prevail (see $$ 194—196 comm). 
A.D. 588, Justinian published his Digest or Pandects, a compilation 
of extracts from the writings of the jurists, to which he gives legis- 
lative authority. Every sentence, accordingly, of these passages is 
called a lex, and the remainder of their writings is pronounced to 
be absolutely void of authority. To prevent the recurrence of the 
evil which his codification was intended to remove, and confident 
in the lucidity and adequacy of his Digest and Code, Justinian 
prohibits for the future the composition of any juristic treatise 
or commentary on the laws. If any one should disregard the 
prohibition, the books are to be destroyed and the author punished 
as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. | 
Besides the sources of law enumerated by Gaius, the Institutes 
of Justinian mention Custom or Usage, the source of consue- 
tudinary or customary law (jus non scriptum, consensu receptum, 
moribus introductum). To this branch of law are referred, with 
other rules, the invalidity of donations between husband and wife, 
Dig. 24, 1, 1, the power of making a will for an infant successor 
who dies before the age of puberty (pupillaris substitutio), Dig. 
28, 6, 2, pr. and universal succession in Coemption and Adrogation, 
8 $82. See also 4 $6 26, 27, We may suppose that Customary 


1.$8] DE IVRIS DIVISIONE. 35 


law, like Roman law in general, would fall into two divisions, Civil 
law and Gentile law, the former embracing what Roman writers 
sometimes speak of as mores majorum. Before the time of Gaius, 
however, most, if not all, of Customary law must have been taken 
up mto the edict of the praetor or the writings of the jurists, Cic. 
De Invent. 2, 22; i.e. unwritten law must have changed its char- 
acter and have been transformed into written law. 


[i]. DE 1VRIS DIVISIONS. | ON THE BRANCHES OF THE LAW. 


$8. Omneautem iusquo utimur, — $8. The whole of the law by 

uel ad personas pertinet uel ad res which we are governed relates either 

vel ad actiones. et prius uideamus to persons, or to things, or to pro- 

de personis. cedure; and let us first examine 
the law of persons. 


$8. What are the leading divisions of law—what are the main 
masses into which legislation naturally breaks itself— what are the 
joints and articulations which separate the whole code into various 
subordinate codes, like the different limbs and members of an 
organic whole—-what is the import of the Gaian division into jus 
personarum, jus rerum, jus actionum, or rather, to adhere to the 
classical phrases, jus ad personas pertinens, jus ad res pertinens, 
jus ad actiones pertinens ? 

By jus ad actiones pertinens, to begin with the easier part of the 
problem, there is no doubt that the inventor of the division intended 
to designate the law of PROCEDURE as opposed to the law of 
rights; the adjective code, to use Bentham's phraseology, as opposed 
to the substantive code. There is as little doubt that in the Insti- 
tutions of Gaius this design is not executed with precision, and 
that, instead of the law of procedure, the last portion of his treatise 
rather contains the law of sanctioning rights, as opposed to the 
law of primary rights. Or perhaps we should say that the legislative 
provisions respecting Procedure have a double aspect: a purely 
formal aspect, so far as they give regularity and method to the 
enforcement of sanctioning nights; and a material aspect, so far as 
certain stages of procedure (e.g. litis contestatio and res judicata) 
operate like Dispositions or any other Titles to modify the substan- 
tive rights of the contending parties. Procedure, then, is treated 
of in these Institutions partly indeed in its formal character, but 
still more in its material character, i.e. so far as its incidents can 
be regarded as belonging to the substantive code, 

D2 


86 | DE PERSONIS. [1. $8. 


It 1s more difficult to determine the principle of the other division, 
the relation of the law of Persons to the law of 'Things. "They both 
deal with the rights and duties of persons in the ordinary modern 
acceptation of the word; why then, we may inquire, are certain 
rights and duties of persons separated from the rest and dealt with 
under the distinguishing category of jura personarum? It is not 
enough to say with Austin that the law of Things is the universal 
or general portion of the law, the law of Persons a particular and 
exceptional branch; that it is treated separately on account of no 
essential or characteristic difference, but merely because it is com- 
modious to treat separately what is special and exceptional from 
what is general and universal. This answer furnishes no positive 
character of the law of Persons, but only the negative character 
of anomaly, i.e. of unlikeness to the larger portion of the law; 
but it would be difficult to show that the law of Persons is more 
exceptional, anomalous, eccentrie, than the Civil dispositions as 
opposed to the Natural or Gentile dispositions of the law of Things. 

We must look to the details of the law of Persons, and observe 
whether its dispositions have any common character as contrasted 
with the dispositions of the law of Things. The law of Persons, 
in other words, the law of Status, classifies men as slaves and free, 
as citizens (privileged) and aliens (unprivileged), as paterfamilias 
(superior) and filiusfamilias (dependent). The law of Things looks 
at men as playing the parts of contractors or of neighbouring 
proprietors ; in other words, the law of Persons considers men as 
UNEQUALS, the law of Things considers them as EQUALS : the 
one may be defined as the law of relations of inequality, the other as 
the law of relations of equality. 

It may induce us to believe that the law of unequal relations 
and the law of equal relations is a fundamental division of the 
general code, if we consider how essential are the ideas of equality 
and inequality to the fundamental conception of law. If we ventured 
on a Platonic myth, we might say that Zeus, wishing to confer the 
greatest possible gift on the human race, took the most opposite 
and uncombinable things in the universe, Equality and Inequality, 
and, welding them together indissolubly, called the product by the 
name of political society or positive law. 

The assumption will hardly be controverted, that in the relations 
of subject to subject, Positive law, like Ethical law, recognizes, as 
an ideal at least, the identity of the just (lawful) with the equal. 


1. $ 8.] DE IVRIS DIVISIONE. | 37 


Inequality, however, is no less essentially involved in positive law. 
We have seen that there is no right and no duty by positive law 
without a legislator and sovereign to whom the person owing the 
duty is in subjection. On the one side weakness, on the other 
irresistible power. Positive rights and duties, then, imply: both . 
the relation of subject to subject, and the relation of subject to 
sovereign or wielder of the sanction, in other words, both the relation 
of equal to equal, and the relation of unequal to unequal. It is 
the more surprising that Austin should apparently have failed to 
seize with precision this conception of the law of Persons, as he 
makes the remark, in which the whole truth seems implicitly con- 
tained, that the bulk of the law of Persons composes the Public, 
Political, or Constitutional code (jus publicum). Political society 
or government essentially implies subordination. It implies, on 
the one hand, sovereign power reposing in various legislative 
bodies, distributed, delegated, and vested in various corporations, 
magistrates, judges, and other functionaries; on the other hand, 
private persons or subjects subordinate to the sovereign power and 
to its delegates and ministers. The different forms of government 
are so many forms of subordination, so many relations of superior 
and inferior, that is, so many relations of unequals. Public law, 
then, is a law of Status, and the law of Persons or law of Status in 
the private code is the intrusion of a portion of the public code 
into the private code; or, in barbarous and semi-civilized legisla- 
tions, the disfigurement of private law by the introduction of 
relations that properly belong to publie law. For instance, the 
most salient institution of the ancient Roman law of Persons, the 
power of life and death over wife and child that vested in the father 
of the household, was the concession to a subject of an attribute 
that properly belongs to the sovereign or a publie functionary. 
Another institution, slavery, placed one subject over another in 
the position of despotic sovereign. The relation of civis to pere- 
grinus, so far as any rights at all were accorded to peregrinus, may 
be conjectured to have originally been that of patronus to cliens, 
that is to say, of political superior to political inferior. 

Government or positive law has usually commenced in the in- 
vasion by the stronger of the (moral) rights of the weaker; but 
80 necessary is inequality to equality, or subordination to coordina- 
tion, that the (moral) crimes of ancient conquerors are regarded 
with less aversion by philosophic historians, as being the indis- 





38 | DE PERSONIS. [1.$ & 


pensable antecedents of subsequent civilization. The beginnings, 
then, of positive law have been universally the less legitimate form 
of inequality, inequality between subject and subject, leaving ite 
traces in dispositions of the civil code: but the advance of civiliza^ 
tion is the gradual elimination of inequality from the law, until 
little remains but that between magistrate and private person, or 
sovereign and subject. Modern society has advanced so far on the 
path of equalization, in the recognition of all men as equal before 
the law, that the distinctions of status, as they existed in the 
Roman law of persons, are almost obliterated from the private code. 
Slavery has vanished ; parental and marital power are of the mildest 
form; civilized countries accord the same rights to cives and 
peregrini; guardians (tutores) in modern jurisprudence, as in the 
later period of Roman law, are considered as discharging a publio 
function, and accordingly the relation of guardian and ward may 
be regarded as a portion of the public code. 

Before we terminate our general remarks on the nature of status, 
it is necessary to distinguish from the law of Persons a department 
of law with which, in consequence of a verbal ambiguity, it is 
sometimes confounded. Blackstone deserves credit for having re- 
cognized Public law as part of the law of Persons; but he also 
included under the law of Persons that department of primary 
rights to which belong the right of free locomotion, the right of: 
using the bodily organs, the right to health, the right to reputation, 
and other rights which perhaps more commonly emerge in the 
redress meted out for their violation, that is, in the corresponding 
sanctioning rights, the right of redress for bodily violence, for 
false imprisonment, for bodily injury, for defamation, and the like. 
These, however, are not the special and exceptional rights of certain 
eminently privileged classes, but the ordinary nghts of all the 
community, at least of all who live under the protection of the 
law; they belong to filiusfamilias as well as to paterfamilias, to 
peregrinus and latinus as well as to civis. The rights in question, 
that is to say, do not belong to the law of unequal rights, or the 
law of Persons, but to the law of equal rights, or the law of 
Things. 

The anomalous institution of slavery, however, furnishes a ground 
for controverting this arrangement; for, as by this legalized 
iniquity of ancient law, the slave, living as he did, not so much 
under the protection as under the oppression of the law, was 





1.$9] DE JURE PERSONARUM. 39 


denuded of all the nghts of humanity, including those of which 
we speak, we cannot say that these rights belong to servus as 
well as to liber. The same, however, may be said of contract 
rghts and rights of ownership, for the slave had neither part 
nor lot in these any more than in the right of a man to the 
use of his own limbs. In defining, therefore, jura rerum to be 
the equal rights of all, we must be understood to mean, of all who 
have any rights. Perhaps, indeed, instead of saying that jura 
rerum are the rights of men regarded as equal, it would be more 
exact to say, that while jus personarum regards exclusively the 
unequal eapacities, that is, the unequal rights of persons, jus rerum 
treats of rights irrespectively both of the equality and the inequality 
of the persons in whom they are vested, leaving their equal or 
unequal distribution to be determined by jus personarum. 

In order to mark the natural position of these rights in the civil 
eode, I have avoided designating them, with Blackstone, by the 
name of Personal rights, a term which I am precluded from using 
by yet another reason. I have employed the terms Personal right 
and Real right to mark the antithesis of nghts against a single 
debtor and rights against the universe. Now the nghts in ques- 
tion are rights that imply a negative obligation incumbent on all 
the world, that is to say, in our sense of the words they are not 
Personal, but Real. 

As contrasted with Acquired rights (Erworbene Rechte, jus quae- 
situm) they are called Birthrights or PRIMORDIAL nights 
(Urrechte), names which are open to objection, as they may seem to 
imply a superior dignity of these mghts, or an independence, in 
contrast with other rights, of positive legislation, characters which 
the name is not intended to connote. For purposes of classi- 
fication this branch of primary rights is of minor importance. 
Unhke Status, Dominion, Obligation, Primordial rights are not 
the ground of any primary division of the code. The actions 
founded on the infraction of Primordial rights partly belong to 
the civil code of obligation arising from Tort (e.g. actio inju- 
riarum), partly and principally to the criminal code. 


[ir DE CONDICIONE HOMINVX.] ON DIVERSITIES OF CONDITION. 


§ 9. Et quidem summa diuisio $ 9. The first division of men by 
de iure personarum haec est, quod the law of persons is into freemen 
omnes homines aut liberi sunt aut and slaves. 
serui. 


40 


§ 10. Rursus liberorum hominum 
alti ingenui sunt, alti libertini. 

$11. Ingenui sunt qui liberi 
nati sunt; libertini, qui ex iusta 
seruitute manumissi sunt. 

§ 12. Rursus libertinorum (fria 
sunt genera ; nam aut ciues Romani 
aut Latini aut dediticiorum) nu- 
mero sunt. de quibus singulis dis- 


DE PERSONIS. 


[1. $$ 9-12. 


$ 10. Freemen are divided into 
freeborn and freedmen. 

. $11. The freeborn are free by 
birth; freedmen by manumission 
from legal slavery. 

§ 12. Freedmen, again, are di- 
vided into three classes, citizens of 
Rome, Latins, and persons on the 
footing of enemies surrendered at 


discretion. Let us examine each 
class in order, and commence with 
freedmen  assimilated to enemies 
surrendered at discretion. 


piciamus : ac prius de deditictis. 


§ 12. As Gaius has not marked very strongly the divisions of 
the present book, it may be worth while to consider what are the 
leading branches of the doctrine of Status. Status falls under 
three heads,—liberty (libertas), citizenship (civitas), and domestic 
position (familia). 

Under the first head, men are divided into free (liberi) and slaves 
(servi): the free, again, are either free by birth (ingenui) or by 
manumission (libertini) We have here, then, three classes to 
consider: ingenui, libertini, servi. 

Under the second head men were originally divided into citizens 
(cives) and aliens (peregrini) The rights of citizens fall into two 
branches, political and civil, the former being electoral and legisla- 
tive power (jus suffragii) and capacity for office (jus honorum); the 
latter relating to property (commercium) or to marriage (connu- 
bium). Aliens were of course devoid of the political portion of 
these rights (suffragium and honores); they were also devoid of 
proprietary and family rights as limited and protected by the civil 
law (commercium and connubium), though they enjoyed corre- 
sponding rights under the jus gentium. At a subsequent period 
a third class were intercalated between cives and peregrini, namely, 
latini, devoid of the political portion of the franchise, and enjoying 
only a portion of the private franchise, commercium without con- 
nubium. Here also, then, we have three classes, cives, latini, pere- 
grini. 

The powers of the head of a family were nominally three, potes- 
tas, manus, mancipium : potestas, however, was either potestas do- 
minica, power over his slaves, or potestas patria, power over his 
children, which, at the period when Roman law is known to us, 
were different in kind; so that the rights of paterfamilias were 


1. $§ 9-12.] DE JURE PERSONARUM. 4a 


really fourfold. Manus or marital power placed the wife on the 
footing of filiafamilias, which was the same as that of filiusfamilias. 
Paterfamilias had a legal power of selling (mancipare) his children 
into bondage; and mancipium, as denoting a person, designated 
a filiusfamilias who had been sold by his parent as a bondsman 
to another paterfamilias. In respect of his purchaser, such a bonds- 
man was assimilated to a slave: in respect of the rest of the world, 
he was free and a citizen, though probably his political capacities 
were suspended as long as his bondage (mancipii causa) lasted. 
As slaves are treated of under the head of libertas, and the status 
of the wife (manus) was exactly the same as that of the son, we 
may say, that in respect of domestic dependence or independence 
(familia), as well as in respect of libertas and civitas, men are 
divided into three classes,—paterfamilias, filiusfamilias, and man- 
cipium ; paterfamilias alone being independent (sui juris), the other 
two being dependent (alieni juris) in unequal degrees. 

These nine classes are not examined by Gaius with equal minute- 
ness. Under the first head he principally examines the libertini : 
the classes under the second head, cives, latini, peregrini, are only 
noticed indirectly, i.e. so far as they present a type for the classifi- 
cation of libertini ; and the bulk of the first book of the Institutions 
is devoted to domestic relations. 

In modern jurisprudence, Status having disappeared, the law of 
domestic relations—the relation of husband to wife, parent to child, 
guardian to ward—constitutes the whole of that of which formerly 
it was only a part, the law of Persons. It differs from the rest of 
the civil eode in that, while the relations of Property and Obligation 
are artificial and accidental, the relations governed by the code of 
the Family are natural, and essential to the existence of the human 
race: so much so that the principal relations of the family extend 
to the rest of the animal world, and the portion of the code relating 
to them is called by Ulpian pre-eminently jus Naturale D. 1, 1, 3. 
Secondly, whereas every feature of Property and Obligation is the 
creation of political law, Domestic life is only partially governed 
by political law, which leaves the greater portion of its rights 
and duties to be ruled by the less tangible dictates of the moral 
law. 

The pure law of the Family, that is, when we exclude all consi- 
deration of Property and Obligation relating to property, is of very 
moderate compass: but with the pure code of the family it is con- 





42 DE PERSONIS. [1. $$ 13-27, 


venient to aggregate what we may call with Savigny, § 57, the 
applied code of the Family, i.e. such of the laws of Property and 
Obligation as concern members of the family group—husband and 
wife, parent and child, guardian and ward. The main divisions 
then of the substantive code are Family law Pure and Applied; the 
law of Property; and the law of Obligation. If, in view of its im- 
portance, we separate from the law of Property the law of Rerum 
Universitates, confining the law of Property to the province of Res 
singulae, we may add to the three we have enumerated a fourth 


division, the law of Successions. 


[nr DE DEDITICHS VEL LEGE 
AELIA SENTIA. | 


. $13. Lege itaque Aelia Sentia 

cauetur, ué qui serui a dominis poe- 
nae nomine uincti sent, quibusue 
stigmata inscripta sint, deue quibus 
ob noxam quaestio tormentis habita 
git et in ea noxa fuisse conuicti sint, 
quiue ut ferro aut cum . bestiis de- 
pugnarent traditi sint, inue ludum 
custodiamue contecti fuerint, et 
postea uel ab eodem domino uel ab 
alio manumissi, eiusdem condicionis 
liberi fiant, cuius condicionis sunt 
peregrini dediticit. 


[V. DE PEREGRINIS DEDITICII8. | 


§ 14. Vocantur autem peregrini 
dediticii hi qui quondam aduersus 
populum Romanum armis susceptis 
pugnaverunt, deinde uicti se dedi- 
derunt. 

$15. Huius ergo turpitudinis 
seruos quocumque modo et cuius- 
cumque aetatis manumissos, etsi 
pleno iure dominorum fuerint, 
numquam aut cives Romanos aut 
Latinos fieri dicemus, sed omni 
modo dediticiorum numero consti- 
tui intellegemus. 


FREEDMEN ASSIMILATED TO SURBEN- 
DERED FOES AND DISPOSITIONS OF 
THE LEX AELIA SENTIA. 


$13. The law Aelia Sentia en- 
acts that slaves who have been 
punished by their proprietors with 
chains, or have been branded, or 
have been examined with torture 
on & criminal charge, and have been 
convicted, or have been delivered 
to fight with men or beasts, or bave 
been committed to & gladiatorial 
school or a public prison, if subse- 
quently manumitted by the same 
or by another proprietor, shall ac- 
quire by manumission the status of 
enemies surrendered at discretion. 


CONCERNING SURRENDERED 
ENEMIES. 


$ 14. Surrendered enemies are 
people who have taken up arms 
and fought against the people of 
Rome and having been defeated 
have surrendered. 

$ 15. Slaves tainted with this 
degree of criminality, by whatever 
mode they are manumitted and at 
whatever age, and notwithstanding 
the plenary dominion of their pro- 
prietor, never become citizens of 
Rome or Latins, but can only ac- 
quire the status of enemies who 
have surrendered. 


1.$ 13-27.] 


$16. Si uero in nulla tali tur- 
pitudine sit seruus, manumissum 
modo ciuem Romanum, modo La- 
tinum fieri dicemus. 

$17. Nam in cuius persona tria 
haec concurrunt, ut maior sit anno- 
rum triginta, et ex iure Quiritium 
domini, et iusta ac legitima manu- 
missione liberetur, id est uindicta 
aut censu aut testamento, is ciuis 
Romanus fit; sin uero aliquid 
eorum deerit, Latinus erit. 


[Vi. DE MANVMISSIONE VEL CAVSAE 
PROBATIONE. | 


$ 18. Quod autem de aetate serui 
requiritur, lege Aelia Sentia intro- 
ductum est. nam ea lex minores 
XXX annorum seruos non aliter 
uolut manumissos ciues Romanos 
fieri, quam si uindicta, apud con- 
silium iusta causa manumissionis 
adprobata, liberati fuerint. 


$19. Iusta autem causa mauu- 
missionis est ueluti si quis filium 
filiamue, aut fratrem sororemue 
naturalem, aut alumnum, aut paeda- 
gogum, aut seruum procuratoris 
habendi gratia, aut ancillam matri- 
monii causa apud consilium manu- 
mittat. 


[VII DE CONSILIO ADHIBENDO.] 


$ 20. Consilium autem adhibetur 
in urbe Roma quidem quinque 
senatorum et quinque equitum Ho- 
manorum puberum; in prouinciis 
autem uigiuti recuperatorum ciuium 


DE LIBERTINIS. 43 


$ 16. If unstained by offences of 
80 deep & dye, manumission some- 
times makes the slave a citizen of 
Rome, sometimes a Latin. 

$17. A slave in whose person 
these three conditions are united, 
thirty years of age, quiritary owner- 
ship of the manumitter, liberation 
by a civil and statutory mode of 
manumission, i.e. by default in a 
fictitious vindication, by entry on 
the censor's register, by testamen- 
tary disposition, becomes a citizen 
of Rome: a slave who fails to 
satisfy one of these conditions be- 
comes only a Latin. 


ON MANUMISSION AND PROOF OF 
ADEQUATE GROUNDS OF MANU- 
MISSION. 


$ 18. The requisition of a certain 
age of the slave was introduced by 
the Lex Aelia Sentia, by the terms of 
which law, unless he is thirty years 
old, a slave cannot on manumission 
become a citizen of Rome, unless the 
mode of manumission is fictitious 
vindication, preceded by proof of 
adequate motive before & body of 
judicial assessors of the praetor. 

19. There is an adequate motive 
of manumission if, for instance, a 
natural child or natural brother or 
sister or foster child of the manu- 
mitter's, or a governor of the manu- 
mitter's child, or a male destined to 
be employed as an agent in business, 
or & female destined to become the 
manumitter's wife, is presented to 
the Council for manumission. 


CONCERNING THE CONSTITUTION 
OF THE COUNCIL. 


$ 20. The council of assessors is 
composed at Rome of five senators 
and five Roman knights above the 
age of puberty: in the provinces of 
twenty recuperators, who must be 





44 


Romanorum, idque fit ultimo die 
conuentus; sed Romae certis die- 
bus apud consilium manumittuntur. 
maiores uero triginta annorum serui 
semper manumitti solent, adeo ut 
uel in transitu manumittantur, ue- 
luti cum praetor aut pro consule in 
balneum uel in theatrum eat. 


$ 21. Praeterea minor triginta an- 
norum seruus [manumissus] potest 
ciuis Romanus fieri, si ab eo domino 
qui soluendo | non erat, testamento 
eum liberum et heredem relictum 








(24 uersus in C legi nequeunt.) 


$ 22. homines Latini 
Juniani appellantur; Latini ideo, 
quia adsimulati sunt Latinis coloni- 
aiiis; luniani ideo, quia per legem 
Iuniam libertatem acceperunt, cum 
olim serui uiderentur esse. 





§ 23. Non tamen illis permittit 
lex Iunia uel ipsis testamentum 
facere, uel ex testamento alieno 
capere, uel tutores testamento dari. 


$ 24. Quod autem diximus ex tes- 
tamento eos capere non posse, ita 
intellegemus, ne quid directo here- 
ditatis legatorumuenomine eos posse 


capere dicamus; alioquin per fidei-- 


commissum capere possunt. 

$ 25. Hi uero qui dediticiorum 
numero sunt, nullo modo ex testa- 
mento capere possunt, non inagis 
quam quilibet peregrinus, nec ipsi 
testamentum facere possunt secun- 
dum id quod magie placuit. 

$ 26. Pessima itaque libertas 
eorum est qui dediticiorum numero 
sunt; nec ulla lege aut senatuscon- 
sulto aut constitutione principali 
aditus illis ad ciuitatem Romanam 
datur. 


DE PERSONIS. 


[1. $$ 13-27. 


Roman citizens, and who hold their 
session on the last day of the assize. 
At Rome the council holds its session 
on certain days appointed for the 
purpose. <A slave above the age of 
thirty can be mauumitted at any 
time, and even in the streets, when 
the praetor or proconsul is on his 
way to the bath or theatre. 

$ 21. Under the age of thirty a 
slave becomes by manumission a 
citizen of Rome, when his owner 
being insolvent leaves a will in 
which he gives him his freedom and 
institutes him his heir (2 $ 154), 
provided that no other devisee ac- 
cepts the succession. 

$ 22. Slaves manumitted in writ- 
ing, or in the presence of witnesses, 
or at a banquet, are called Latini 
Juniani: Latini because they are 
assimilated in status to Latin co- 
lonists ($ 131), Juniani because 
they owe their freedom to the lex 
Junia, before whose enactment they 
were slaves in the eye of the law. 

$ 23. These freedmen, however, 
are not permitted by the lex Junia 
either to dispose of their property 
by will or to take by devise or be- 
quest, or to be appointed testamen- 
tary guardians. 

§ 24. Their incapacity to take 
under a will must only be under- 
stood as an incapacity to take 
directly as successors or legatees, 
not to take indirectly as benefi- 
ciaries of a trust. 

§ 25. Freedmen classed with sur- 
rendered enemies are incapable of 
taking under a will in any form, as 
are other aliens, and are incom- 
petent to make a will according to 
the prevalent opinion. 

§ 26. It is only the lowest grade 
of freedom, then, that is enjoyed 
by freedmen assimilated to surren- 
dered aliens, nor does any statute, 
senatusconsult, or constitution open 
to them a way of obtaining Roman 
citizenship. 


t. §§ 13-27. 


§ 27. Quin etiam in urbe Roma 
uel intra centesimum urbis Romae 
miliarium morari prohibentur ; et si 
qui contra ea fecerint, ipsi bonaque 
eorum publice uenire iubentur ea 
condicione, ut ne in urbe Roma 
uel intra centesimum urbis Romae 
miliarium seruiant neue umquam 
manumittantur; et si manumissi 
fuerint, serui populi Romani esse 
iubentur. et haec ita lege Aelia 
Sentia conprehensa sunt. 


DE LIBERTINTS. 


45 


$ 27. Further, they are forbid- 
den to reside in Rome or within 
the hundredth milestonefrom Rome; 
and if they disobey the prohibition, 
their persons and goods are directed 
to be sold on the condition that 
they shall be held in servitude be- 
yond the hundredth milestone from 
Rome, and shall be incapable of 
subsequent manumission, and, if 
manumitted, shall be the slaves of 
the people of Rome: and these pro- 


visions are dispositions of the lex 
Aelia Sentia. 


§ 14. Peregrini dediticu. Cf. Livy 1, 88. 

$15. Pleno jure. Cf. $54and 2 § 41. 

$ 17. Manumission was either a publie or a private act. When 
manumission, besides freeing a slave from the dominion of his pro- 
prietor, converted him into a citizen of Rome, it was not a matter 
of merely private interest to be accomplished by the sole volition 
of the proprietor. Accordingly, the three modes of manumission 
which conferred the Roman franchise on the manumitted slave, 
testamento, censu, vindicté, involved in different forms the inter- 
vention of the State. 

Wills were originally executed at the Comitia calata, 2 § 101, 
where the dispositions of the testator, including his donations of 
freedom, received legislative sanction, being converted into a private 
law by the ratification of the sovereign assembly. When a new 
form of will was introduced, 2 § 102, testators retained their power 
of manumission, although the people here at the utmost were 
only symbolically represented by the witnesses of a mancipation. 
Bequests of liberty were either direct or indirect. A direct bequest 
of liberty (directo data libertas) made the manumitted slave a freed- 
man of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect 
bequest, that is, a request to the successor to manumit the slave 
(fideicommissaria libertas), made the slave on manumission a freed- 
man of the successor, 2 § 266. 

In manumission by the Census the interests of the State were 
represented by the censor. Censu manumittebantur olim qui lus- 
trali censu Romae jussu dominorum inter cives Romanos censum 
profitebantur, Ulpian 1,8. * Registry by the censor was an ancient 
mode of manumission by the quinquennial census at Rome when 





46 DE PERSONIS. [1. $$ 13-27. 


& slave was ordered by his owner to make his return of property on 
the register of Roman citizens Ex jure civili potest esse contentio, 
quum quaeritur, is qui domini voluntate census sit, continuone an 
ubi lustrum conditum liber sit, Cic. De Orat. 1,40. ‘It is a question 
of civil law, when a slave is registered with his owner's sanction, 
whether his freedom dates from the actual inscription on the 
register or from the close of the censorial period. Ulpian speaks 
of the census as a thing of the past. Since the Christian era only 
three had been held, the last under Vespasian, a.p. 74. 

In manumission by Vindicta the State was represented by the 
Praetor. The vindicta or festuca was a rod or staff, representing 
a lance, the symbol of dominion, with which the parties in a real 
action (vindicatio) touched the subject of litigation as they solemnly 
pronounced their claim. Accordingly it was used in a suit respect- 
ing freedom (liberalis causa), for this, as status is a real right (jus 
in rem), was a form of real action, and was sometimes prosecuted 
by way of genuine litigation, sometimes was merely a solemn 
grant of liberty, that is, a species of alienation by surrender in the 
presence of the magistrate (in jure cessio). In a liberalis causa the 
slave to be manumitted, being the subject of the fictitious litigation, 
could not himself be a party, but was advocated by a vindex or 
adsertor libertatis, who in later times was usually represented by 
the praetor’s lictor. The adsertor grasping the slave with one of 
his hands, and touching him with the vindicta, asserted his freedom, 
4 $16. The proprietor quitting his grasp of the slave (manu 
mittens) and confessing by silence or express declaration the justice 
of the claim, the magistrate pronounced the slave to be free. This 
procedure belonging to the praetor's voluntary, not his contentious, 
jurisdiction, did not require the praetor to be seated on his elevated 
platform in the comitium (pro tribunali), but might be transacted 
by him on the level ground (de plano); and as the mere presence of 
the praetor constituted a court (jus), he was usually seized upon for 
the purpose of manumissions as he was preparing to take a drive 
(gestatio), or to bathe, or to go to the theatre, $ 20. 

§ 18. The lex Aelia Sentia passed in the reign of Augustus, in 
the same year with the lex Julia de maritandis ordinibus, a.p. 4, 
and named after the consuls Sextus Aelius Catus and Caius Sentius 
Saturninus, was intended to throw obstacles in the way of acquiring 
the Roman franchise. One of its enactments provided that a slave 
under the age of thirty could not be made a citizen unless manu4 


2. §§ 13-27.] DE LIBERTINIS. 47 


mitted by Vindicta, after proof of adequate motive before a certain 
judicial board. We may inquire what would be the effect of manu- 
mission if the causae probatio were omitted. Inscription on the 
censor’s register was probably entirely null and void, as this cere- 
mony was either a mode of making a Roman citizen or it was 
nothing. Testamentary manumission, as we learn from Ulpian, 
left the man legally a slave, but gave him actual liberty (possessio 
libertatis, in libertate esse, as opposed to libertas), a condition 
recognized and protected by the praetor. Manumission by Vin- 
dicta probably gave the slave freedom without the franchise, i.e. 
made him a peregrinus. The subsequent lex Junia Norbana ap- 
parently provided that, in the absence of causae probatio, the 
minor triginta annis manumissus, whether testamento or vindicta, 
should belong to the new class which it introduced, namely, the 
latin. Hence, by an intelligible anachronism, Gaius, § 29, § 31, 
speaks of Latini made by the lex Aelia Sentia. 

$19. Alumnus denotes a slave child reared by the manumitter, 
as appears from the following passage: Alumnos magis mulieribus 
conveniens est manumittere, sed et in viris receptum est, satisque 
est permitti eum manumitti in quo nutriendo propensiorem animum 
fecerint, Dig. 40, 2, 14. ‘Foster children are more naturally 
manumitted by women than by men, though not exclusively; and 
it suffices to allow the manumission of a child who has won his 
proprietor’s affection in the course of his education.’ 

$20. The Equites Romani, who at Rome composed a moiety of 
the judicial assessors, are opposed to Equites equo publico. Eques 
Romanus was such merely by his census: Eques equo publico, in 
the latter days of Rome, was a youth nominated by the emperor to 
the turmae equitum ; not, however, intended for actual service with 
the legions, but merely marked out as an expectant of future 
employment in higher public functions, military or civil. The title 
of Princeps juventutis, often conferred by the emperors on their 
successors designate, denoted the leader of the Equites equo publico. 
In the time of Augustus the list of judices (album judicum) con- 
sisted of three panels (decuriae) Senatores, Equites Romani, and 
Equites equo publico. Augustus added a fourth, the Ducenarii, 
those whose census amounted to 200,000 sesterces, who judged 
minor cases; and subsequently Caligula added a fifth. 

Recuperators are judges not taken from the panel (album judi- 
eum), 


48 DE PERSONIS. [1. 8j. 13-27. 


§ 21. Ulpian adds, 1, 14, that a slave who otherwise would only 
have become dediticius, or a freedman of the lowest class, if he 
is instituted the heres necessarius of an insolvent, becomes civis 
Romanus. Mommsen would supplement the text in this section 
with the following words—‘relictum alius heres nullus excludit 
neque ullus alius ex eo testamento heres existat idque eadem lege 
cautum est. Cf. Ulp. 1, 14, and for an account of different grades 
of heredes see 2 $ 174. In respect of what is missing in the re- 
mainder of the lacuna Krueger and Studemund give references to 
Inst. 1, 6, 1, and Ulp. 1, 14. 

When manumission was a purely private act, it could not confer 
the Roman franchise; it could only make a dediticius or a latinus. 

The codex Alaricianus or Breviarium Alaricianum, a code pro- 
mulgated a.p. 506 by Alaric II, king of the Visigoths of Spain and 
Gaul, contained, besides extracts from the codex Theodosianus 
(promulgated 4.p. 436), a selection from the Sententiae of Paulus 
and an epitome of these institutes of Gaius. From this epitome it 
appears that in the paragraphs now obliterated Gaius proceeded to 
explain the modes of private manumission by which a slave became 
Latinus Junianus, and instanced writing (per epistolam), attestation 
of witnesses (inter amicos), invitation of the slave to sit with other 
guests at the table of his master (convivii adhibitione). 

$ 22. The lex Junia Norbana, probably passed in the reign of 
Tiberius, A.D. 19, fifteen years after the lex Aelia Sentia in the consu- 
late of Mareus Junius Silanus and Lucius Norbanus Balbus, defined 
and modified the status conferred by such acts of private manumission, 
converting Praetoris tuitione liber into ipso jure liber, or possessio 
libertatis into genuine libertas; with, however, sundry grievous 
stints and deductions. Under this statute the freedman was nomi- 
nally assimilated to Latinus coloniarius, the citizen of a Roman colony 
in Latium; that is, had a moiety of the private rights composing 
civitas Romana or jus Quiritium, possessing commercium without 
connubium. As incapable of connubium or civil marriage, the 
Latinus was incapable of patria potestas over his children and of 
agnatio or civil relationship. Though incapable of civil marriage 
he was of course capable of gentile marriage (matrimonium, 
uxorem liberorum quaerendorum causa ducere) and of natural rela- 
tionship (cognatio), just as an alien (peregrinus), though, by want of 
commercium, incapable of dominion ex jure Quiritium, was capable 
of bonitary ownership (in bonis habere) under the jus gentium. 


1.§§ 13-27.] DE LIBERTINIS. 49 


In virtue of commercium, the Latinus Junianus was capable of 
Quiritary ownership, of civil acquisition and alienation (usucapio, 
mancipatio, in jure cessio), contract (obligatio), and action (condictio, 
vindicatio), like a Roman citizen; but in respect of testamentary 
succession his rights were very limited. He was said to have 
testamentary capacity (testamentifactio), Ulpian, 20, 9; but this 
only meant that he could perform the part of witness, or familiae 
emptor, or libripens (2 $ 104), i.e. could assist another person to 
make a valid will; not that he could take under a will either as 
heir or as legatee, or could dispose of his own property by will, 
Ulpian, 20, 14. At his death all his property belonged to his 
patron, as if it were the peculium of a slave, 3 $ 56. In fact, as 
Justinian says: Licet ut liberi vitam suam peragebant, attamen 
ipso ultimo spiritu simul animam atque libertatem amittebant, 
Inst. 8, 7, 4. ‘Though free in their lifetime, the same moment 
that deprived them of life reduced them to the condition of 
slaves.’ 

Although in the person of libertus himself, Latinitas was almost 
a mockery, yet it was not so for his posterity; these disabilities 
only attached to the original freedman, not to his issue. The son 
of the dediticius or Latinus Junianus, though reduced to absolute 
penury by the confiscation of the parental property to the patron, 
began, and continued, the world with the ordinary capacities, re- 
spectively, of peregrinus and Latinus coloniarius, and was under no 
legal obligations to the patron of his father. 

Long before the time of Gaius, Latinitas or Latium had only a 
jaristic, not an ethnographic signification. Cf. §79. Soon after the 
social war all Italy received the civitas Romana. Originally Gallia 
Cispadana (Southern Lombardy) had civitas Romana, while Gallia 
Transpadana (Northern Lombardy) had only Latinitas, but Gallia 
Transpadana afterwards obtained civitas. Latinitas was a definite 
jaristic conception, and Latin status was conferred as a boon on 
many provincial towns and districts that had no connection with 
Latium or its races. Vitellius is carped at by Tacitus for his lavish 
grants of Latinity (Latium vulgo dilargiri Hist. 3, 55). Hadrian 
made many similar grants (Latium multis civitatibus dedit, Spar- 
tian, Had. 21), and Vespasian conferred Latin rights on the whole 
of Spain, Pliny, Hist. Nat. 8, 4. See $181 Comm. 


50 


[QvIBVS MODIS LATINI AD CIVITA- 
TEM ROMANAM PERVENIANT. | 


$ 28. Latini uero multis modis ad 
ciuitatem Romanam perueniunt. 

§ 29. Statim enim ex lege Aelia 
Sentia minores triginta annorum 
manumissi et Latini facti si uxores 
duxerint nel ciues Romanas uel 
Latinas coloniarias uel eiusdem con- 
dicionis cuius ef ipsi essent, idque 
testati fuerint adhibitis non minus 
quam septem testibus ciuibus Ro- 
manis puberibus, et filium procrea- 
uerint, cum 1s filius anniculus esse 
coeperit, datur eis potestas per eam 
legem adire praetorem uel in pro- 
uinctis praesidem prouinciae, et ad- 
probare se ex lege Aelia Sentia 
uxorem duxisse et ex ea filium 
anniculum habere; et si is apud 
quem causa probata est, id ita esse 
pronuntiauerit, tunc et ipse Lati- 
nus et uxor eius, si et ipsa (eius- 
dem condicionis sit, et. filius, st et 
ipse) eiusdem condicionis sit, ciues 
Romani esse iubentur, 


$ 30. Ideo autem in hutus persona 
adiecimus * si et ipse eiusdem condi- 
cionis sit, quia si uxor Latini ciuis 
Romana est, qui ex ea nascitur, ex 
nouo senatusconsulto quod auctore 
diuo Hadriano factum est, ciuis Ro- 
manus nascitur. 


$ 31. Hoc tamen ius adipiscendae 
ciuitatis Ronianae etiamsi so/i mi- 
nores triginta annorum manumissi 
et Latini facti ex lege Aelia Sentia 
habuerunt, tamen postea senatus- 
consulto quod Pegaso et Pusione 
consulibus factum est, etiam ma- 


DE PERSONIS. 


[1. §§ 28-35. 


MODES BY WHICH LATIN FREEDMEN 
BECOME ROMAN CITIZENS. 


§ 28. Latins have many avenues 
to the Roman franchise. 

§ 29. For instance, the lex Aelia 
Sentia enacts that when a slave 
below the age of thirty becomes by 
manumission & Latin, if he take to 
himself as wife a citizen of Rome, or 
a Latin colonist, or a freedwoman 
of his own condition, and thereof 
procure attestation by not less 
than seven witnesses, citizens of 
Rome above the age of puberty, on 
begetting a son who attains the 
age of a year, he is entitled to 
apply to the praetor, or, if he reside 
in & province, to the president of 
the province, and to prove that he 
has conformed to the requirement 
of the lex Aelia Sentia by marrying 
a wife, and begetting by her a son 
who has completed the first year 
of his age: and thereupon if the 
magistrate to whom the proof is 
submitted pronounce the trath of 
the declaration, that Latin and 
his wife, if she is of the same 
condition, and their son, if he is 
of the same condition, are declared 
by the statute to be Roman citi- 
zens. 

§ 30. The reason why I added, 
when I mentioned the son, if of the 
same condition, was this, that if the 
wife of the Latin is a citizen of 
Rome,the son, in virtue of the recent 
senatusconsult made on the motion 
of the late Emperor Hadrian, is a 
citizen of Rome from the date of 
his birth. 

$ 31. This capacity of acquiring 
Roman citizenship, though by the 
lex Aelia Sentia exclusively granted 
to freedmen who only became 
Latins in consequence of being 
under thirty years of age at the 
time of their manumission, by a sub- 


1.§§28-35.] Q. M. LATINI AD CIVITATEM R. P. 51 


ioribus triginta annorum manu- 
missis Latinis factis concessum est. 


$ 32. Ceterum etiamsi ante de- 
cesserit Latinus, quam anniculi 
filii causam probawerit, potest mater 
eius causam probare, et sic et ipsa 
fiet ciuis Romana, si Latina fuerit 
——|— permissum 
quibusdam |ipse filius ciuis 
Bomanus sit, quia ex ciue Romana 
matre natus est, tamen debet causam 
probare, ut suus heres petri fiat, 








$ 32 a. (quae) uero diximus de 
filio annicul(o, eadem e de filia an- 
mcula) dicta intellegemus. 


$ 32.5. | | lid est 
fiunt ciues Romani, si Romae inter 
uigiles sex annis militauerint. 
postea dicitur factum esse senatus- 
consultum, quo data est illis ciuitas 
Romana, si triennium militiae ex- 
pleuerint. 








$ 32c. Item edicto Claudü La- 
tini ius Quiritium consecuntur, si 
nauem marinam aedificauerint, quae 
non minus quam decem milia mo- 
diorum frumenti capiat, eaque nauis 
uel quae in eius locum substituta 
sit, sex annis frumentum Romam 
portauerit. 

$ 33. Praeterea a Nerone consti- 
tutum est, ut si Latinus qui patri- 
moniem sestertium CC milium plur- 
isue habebit, in urbe Boma domwm 
sedificauerit, in quam non minus 
quam partem dimidiam patrimonii 
sui inpenderit, ius Quiritium con- 
sequatur, 


sequent senatusconsult, made in the 
consulship of Pegasus and Pusio; 
was extended to all freedmen who 
acquire the status of Latins, even 
though thirty years old when manu- 
mitted. 

$32. If the Latin die before 
his son's attaining the age of a 
year the mother may prove the 
title, and thereupon both she and 
her son, if she be a Latin, become 
citizens of Rome. And if the mother 
fails to prove the title, the tutors 
of the son may do so or the son 
himself when he has attained the 
age of puberty. If the son is a 
Roman citizen owing to the fact 
of his having been born of a Roman 
citizen mother, he must neverthe- 
less prove his title in order to 
make himself his father’s self suc- 
C BBOT. 

$ 32 a. What has been said about 
a son of a year old, must be under- 
stood to be equally applicable to a 
daughter of that age. 

§ 32 6. Latins acquire the ius 
quiritium, i.e. become Roman cit- 
izens, if they have served for six 
years in the guards at Rome. Asub- 
sequent senatusconsultum is said to 
have been passed, by which Roman 
citizenship was conferred on Latins, 
who completed three years active 
military service. 

$ 32 c. Similarly by an edict of 
Claudius Latins acquire the right 
of citizenship, if they build a ship 
which holds 10,000 modii of corn, 
and this ship or one substituted for 
it imports corn to Rome for six 
years. 


§ 33. Nero further enacted that 
if a Latin having property worth 
200,000 sesterces or more, build 
a house at Rome on which he ex- 
pends not less than half his pro- 
perty, he shall acquire the right 
of citizenship, 


E 2 


52 . DE PERSONIS. 


§ 34. Denique Traianus consti- 
tuit, ut si Latznys in urbe triennio 
pistrinum exercuerit in quo in dies 
singulos non minus quam centenos 
modios frumenti pinseret, ad ius 
Quiritium peruentat. 

$ 35. | | | 
maiores triginta annorum manu- 
missi et Latini facti | 
jus Quiritium consequi tri|- 
ginta annorum manumittant | 
| manumissus uindicta aut 
censu aut testamento ciuis 
Romanus | libertus fit 
iterauerit. ergo si seruus in |bonis 
fuis, ex iure Quiritium meus erit, 
Latinus quidem a te solo fieri po- 
test, iterari autem (manwumissto) 
& me, non etiam a te potest, et 
eo modo meus libertus fit. sed et 
ceteris modis ius Quiritium con- 
secutus meus libertus fit. bonorum 
autem quae , cum is morietur, 
reliquerit, tibi possessio datur, quo- 
cumque modo ius Quiritium fuerit 
consecutus. quodsi cuius et in 
bonis et ex iure Quiritium sit manu- 
missus, ab eodem scilicet et Latinus 
fieri potest et ius Quiritium con- 
gequi. . 






































[x. $$ 28-35. 


$ 34. Lastly, Trajan enacted that 

if a Latin carry on the business of 
miller in Rome for three years, and 

grinds each day not less than a. 
hundred measures of wheat, he shall 

attain Roman citizenship. 

$ 35. Slaves who become Latins 

either because they are under thirty 

at the time of their manumission, 

or having attained that age because 

they are informally manumitted, 

may acquire Roman citizenship by 

re-manumission in one of the three 

legal forms, and they are thereby 

made freedmen of their re-manu- 

mitter. Ifa slave is the bonitary 

property of one person and the 

quiritary property of another he 

can be made a Latin by his boni- 

tary owher acting alone, but his 

re-manumission must be the act of 
his quiritary owner, and whether 
he acquires citizenship by re-manu- 

mission or in any other way, he is 
the freedman of his quiritary owner, 

The Praetor, however, invariably 
gives the bonitary owner possession 

of the inheritance of such freed- 

man. A slave in whom his owner 
has both bonitary and quiritary 
property, if twice manumitted by 
his owner, may acquire by the first 
manumission the Latin status, and 
by the second the Roman franchise. 


§ 29. This enactment is stated by Ulpian to belong to the Lex 


Junia (Ulp. 3, 3), cf. § 18 Comm. 


The decision (sententia) of the judex in a judicium ordinarium 
was either condemnatio or absolutio of the defendant. In actions 
in which the case was left to the arbitrium of a judex this was 
apparently preceded by pronuntiatio, a declaration of the rights 
of the parties. This appears from the following, among other 
passages: Sed et si fundum vindicem meum esse, tuque confessus 
sis, perinde teneberis atque si dominii mei fundum esse pronun- 
ciatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me 
et te controversia esset, juravero hereditatem meam esse, id con- 
sequi debeo quod haberem si secundum me de hereditate pronun- 


1.$$28-35.] Q. M. LATINI AD CIVITATEM R. P, 53 


tiatum esset, Dig. 12, 2, 10, 8. When the pronuntiatio was for 
the plaintiff, if the defendant obeyed the arbitrium or provisional 
order of the judex by making restitution, there was no subsequent 
condemnatio. In the form of real action, called a praejudicium, 
that is, a simple issue of fact, the pronunciatio formed the whole 
result of the trial, and was not followed by sententia. Similarly, 
when a Latinus laid his claim of Roman franchise before the 
praetor under this enactment of the lex Aelia Sentia, the result 
of the extraordinaria cognitio of the praetor, as appears by this 
paragraph, was merely & pronuntiatio without any subsequent 
decretum. 

$ 81. Pegasus and. Pusius were consuls in the reign of Vespasian. 

$32 6-§ 85. Cf. Ulpian, Tit. 8. Besides the method provided 
by the lex Aelia Sentia, Latinus or Latina might attain the Roman 
franchise under the following conditions :— 

I. By erroris causae probatio, i.e. if, intending to comply with 
the statute, Latinus marry Peregrina, believing her to be Latina, 
$70; or Latina marry Peregrinus, believing him to be Latinus, 
$ 69; or i£ Civis, believing himself to be Latinus, marry Latina, 
$ 71; orif Civis marry Latina, believing her to be Civis Romana, 
§ 67; on proof of this mistake, the Latinus or Latina and their 
offspring acquire the franchise, 

2. By magistracy in a Latin colony Latinus becomes Civis Ro- 
manus, § 95. 

3. By remanumission (iteratio) i.e. after acquiring Latinity by 
one of the private modes of manumission, a subsequent manumission 
by one of the public modes, vindicta, censu, or testamento, converted 
Latinus into Civis, $ 35, and Ulp. 8, 4. 

4. By six years’ service in the Roman guards (si inter vigiles 
Komae sex annos militaverit, Ulp. 3, 5). A decree of the senate 
made three years’ service a sufficient title, $ 325. Compare the 
provision of 18 Geo. II, c. 8, whereby every foreign seaman who 
in time of war serves two years on board an English ship, and all 
foreign protestante serving two years in a military capacity in 
the Ameriean colonies, are naturalized. 

5. By building a house in Rome (aedificio, Ulp. 3, 1), $ 33. 

6. By building a ship of 10,000 modii and importing corn to Rome 
for six years, Ulp. 8, 6. Compare the English law by which all 
foreign protestants employed three years in the whale fishery are 


naturalized, except as to capacity for public office, $ 82 c. 








54 DE PERSONIS. [1. $$ 36-41. 


7. By building a mill and bakehouse for the supply of Rome 
(pistrino, Ulp. 8, 1), $ 84. 

8. By bearing three children, Ulp. 8, 1. 

9. By imperial grant (beneficio principali, Ulp. 8,2). This and 
the previous mode of acquiring citizenship were perhaps men- 
tioned by Gaius at the beginning of $ 35. 

Civitas Romana and Jus Quiritium are synonymous, but the 
former term was always used when the franchise was conferred on a 
Peregrinus, the latter generally when it was conferred on Latinus 
Junianus: e.g. Quare rogo, des ei civitatem, est enim peregrinae 
conditionis, manumissus a peregrina. . . . Idem rogo, des jus 
Quiritium libertis Antoniae Maximillae . . . quod a te, petente 
patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, 
quod et jus Quiritium libertis necessariae mihi feminae et civi- 
tatem Romanam Harpocrati, iatraliptae meo, sine mora indul- 
sisti, ibid. 10,5. Civitas Romana, however, was sometimes used in 
speaking of the enfranchisement of Latinus, as we see from $ 28. 


QUI, QUIBUS EX CAUSIS, MANUMITTERE NON POSSINT. 





$ 36. | Non tamen cuicumque «o- 
lenti manumittere licet. 

$ 37. nam is qui | in. fraudem 
creditorum uel in fraudem patroni 
manumittit, nihil agit, quia lex 
Aelia Sentia impedit libertatem. 


$ 38. 7tem eadem lege minori Xx 
annorum domino non aliter manu- 
mittere permittitur, quam [si] uin- 
dieta apud consilium iusta causa 
manumissionis adprobata [fuerit]. 


$ 39. Iustae autem caussae manu- 
missionis sunt ueluti si quis pa- 
trem aut matrem aut paedagogum 
aut conlactaneum manumittat. sed 
et illae causae quas superius in 
seruo minore XXX annorum ex- 
posuimus, ad hunc quoque casum 
de quo loquimur, adferri possunt. 
item ex diuerso hae causae quas 
in minore Xx annorum domino ret- 


$ 36. Not every owner who is so 
disposed is capable of manumission. 

$ 37. An ownerwho would defraud 
his creditors or his own patron by 
an intended manumission, attempts 
in vain to manumit, because the lex 
Aelia Sentia defeats the manumis- 
Bion. 

$ 38. Again, by a disposition of 
the same statute, before attaining 
twenty years of age, the only pro- 
cess by which an owner can manu- 
mit, is fictitious vindication preceded 
by proof of adequate motive before 
the council of assessors. 

$ 39. It is an adequate motive of 
manumission, if the father, for in- 
stance, or mother, or governor, or 
foster-brother of the manumitter, 
is the slave to be manumitted. In 
addition to these, the motives re- 
cently specified respecting the slave 
under thirty years of age, may be 
alleged when the  manumitting 
owner is under twenty; and, re- 


1. $$ 42-47.] 


tulimus, porrigi possunt et ad ser- 
uum minorem XXX annorum. 


$ 40. Cum ergo certus modus 
manumittendi minoribus XX anno- 
rum dominis per legem Aeliam Sen- 
tiam eonstitutus sit, euenit ut qui 
XiHi annos aetatis expleuerit, licet 
testamentum facere possit et in eo 
heredem sibi iustituere legataque 
relinquere possit, tamen si adhuc 
minor sit annorum Xx, libertatem 
seruo dare non possit. 


$ 41. Et quamuis Latinum facere 
uelit minor XX annorum dominus, 
tamen nihilo minus debet apud con- 
silium causam probare, et ita postea 
inter amicos manumittere. 


DE LEGE FUFIA CANINIA. 55 


ciprocally, the motives valid when 
the manumitting owner is under 
twenty, are admissible when the 
manumitted slave is under thirty. 

§ 40. As, then, the lex Aelia Sen- 
tia prescribes a certain mode of 
manumiesion for owners under the 
age of twenty, it follows that, 
though a person who has completed 
his fourteenth year is competent 
to make a will, and therein to in- 
stitute an heir and leave bequests ; 
yet, if he has not attained the age 
of twenty, he cannot therein en- 
franchise a slave. 

$ 41. And even to confer the 
Latin status, if he is under the age 
of twenty, the owner must satisfy 
the council of the adequacy of his 
motive before .he manumits the 
slave in the presence of witnesses. 


§ 41. Justinian, having first reduced the age from 20 to 17, or 


the beginning of the eighteenth year (Inst. 1, 6, 7), finally per- 
mitted minors to enfranchise by will ae soon as they could make 
a valid will, i.e. at the age of 14 (Novella, 119, 2). He mentions 
that the lowest class of freedmen (dediticia libertas) had long been 
obsolete, and formally abolished the second class (latina libertas), 
converting most of the modes of making Latinus into modes 
of making Civis Romanus, and declaring the rest inoperative, 


Cod. 7, 6. 


DE LEGE FUFIA OANINIA, 


$ 42. Praeterea lege Fufia Ca- 
ninia certus modus constitutus est 
in seruis testamento manumittendis. 


$ 43. nam ei qui pluresquam duos 
neque plures quam decem seruos 
habebit, usque ad partem dimidiam 
eius numeri manumittere permit- 
titur. ei uero qui plures quam X 
neque plures quam XXX seruos habe- 
bit, usque ad tertiam partem eius 
numeri manumittere permittitur. a£ 
ei qui plures quam XXX, neque 


§ 42. Moreover, by the lex Fufia 
Cuninia a certain limit is fixed to 
the number of slaves who can re- 
ceive testamentary manumission. 

§ 43. An owner who has more 
than two slaves and not more than 
ten is allowed to manumit as many 
as half that number; he who has 
more than ten and not more than 
thirty is allowed to manumit a 
third of that number; he who 
has more than thirty and not more 
than a hundred is allowed to manu- 


56 


plures quam centum habebit, usque 
ad partem quartam potestas manu- 
mittendi datur. nouissime ei qui 
plures quam C nec plures quam 5D 
habebit, non plures manumittere 
permittitur quam quintam par- 
tem; neque plures ( )tur: 
sed praescribit lex, ne cui plures 
manumittere liceat quam &. quod- 
si quis unum seruum omnino aut 
duos habet, ad hanc legem non per- 
tinet, et ideo liberam habet potes- 
tatem manumittendi. 

. $44. Ac ne ad eos quidem om- 
nino haec lex pertinet, qui sine tes- 
tamento manumittunt. itaque licet 
tis, qui uindicta aut censu aut inter 
amicos manumittunt, totam familiam 
liberare, scilicet si alia cuusa non 
inpediat libertatem. 





$ 45. Sed quod de numero ser- 
uorum testamento manumittendo- 
vum diximus, ita intellegemus, ne 
umquam ex eo numero, ex quo di- 
midia aut tertia aut quarta aut 
quinta pars liberari potest, pauciores 
manumittere liceat, quam ex ante- 
cedenti numero licuit. et hoc ipsa 
lege prouisum est; erat enim sane 
absurdum, ut X seruorum domino 
quinque liberare liceret, quia usque 
ad dimidiam partem eius numeri 
manumittere ei conceditur, Xii (au- 
tem) seruos habenti non plures li- 
ceret manum?f£tere quam III; ttem 
eis qui plures quam X neque 

(24 wersus in C legi nequeunt.) 





$46. Nam et si testamento scrip- 
tis in orbem seruis libertas data sit, 
quia nullus ordo manumissionis in- 
uenitur, nulli liberi erunt, quia lex 
Fufia Caninia quae in fraudem eius 
facta sint rescindit. sunt etiam 
Bpecialia senatusconsulta, quibus 


DE PERSONIS. 


[1. $$ 42-47. 


mit a fourth; lastly, he who has 
more than a hundred and not more 
than five hundred is allowed to 
manumit a fifth: and, however 
many a man possesses, he is never 
allowed to manumit more than this 
number, for the law prescribes that 
no one shall manumit more than a 
hundred. On the other hand, if a 
man has only one or only two, the 
law is not applicable, and the owner 
has unrestricted power of manu- 
mission. 

§ 44. Nor does the statute apply 
to any but testamentary manumis- 
sion, 80 that by means of fictitious 
vindication or inscription on the 
censor's register, or by attestation 
of friends, a proprietor of slaves 
may manumit his whole household, 
provided that there is no other let or 
hindrance to impede their manu- 
mission. 

§ 45. But the limitation of the 
number of slaves that a testator 1s 
allowed to manumit is subject to 
the following proviso: that out of 
each of the numbers from which a 
half, a third, a fourth, a fifth, may 
respectively be enfranchised, as 
many may always be enfranchised 
as out of the preceding number, a 
proviso expressed in the statute; 
indeed, it would have been irra- 
tional if the owner of ten slaves 
had been entitled to enfranchise 
five, and the owner of twelve could 
only manumit four; similarly in 
the case of one who had more than 
ten and not more than thirty it 
might have been possible to manu- 
mit a greater number of slaves than 
in the case of one who had more 
than thirty. 

§ 46. If a testator manumits in 
excess of the permitted number, and 
arranges their names in a circle, as 
no order of manumission can be dis- 
covered, none of them can obtain 
their freedom, as both the lex Fufia 
Caninia itself and certain subse- 


§ 1. 48—54.] 


rescissa sunt ea quae in fraudem 
eius legis excogitata sunt. 


§ 47. In summa sciendum est, 
(cum) lege Aelia Sentia cautum 
sit, «t creditorum fraudandorum 
causa manumissi liberi non fiant, 
hoc etiam ad peregrinos pertinere 
(senatus ita censuit ex auctoritate 
Hadriani) cetera uero iura eius 
legis ad peregrinos non pertinere. 


DE POTESTATE DOMINICA, 


57 


quent decrees of the senate declare 
null and void all dispositions con- 
trived for the purpose of eluding 
the statute, 

$ 47. Finally, it is to be noted 
that the provision in the lex Aelia 
Sentia making manumissions in 
fraud of creditors inoperative, war 
extended to aliens by a decree of 
the senate passed on the proposition 
of the Emperor Hadrian; whereas 
the remaining dispositions of that 


statute are inapplicable to aliens. 


§ 45. The subject of what is omitted in the MS. may be 
gathered from Epit. 1, 2, 2-4: ‘Nam si aliquis testamento plures 
manumittere voluerit, quam quot continet numerus supra scriptus; 
ordo servandus est, ut illis tantum libertas valeat, qui prius manu- 
missi sunt, usque ad illum numerum, quem explanatio continet 
superius comprehensa ; qui vero postea supra constitutum numerum 
manumissi leguntur, in servitute eos certum est permanere. 
Quodsi non nominatim servi vel ancillae in testamento manu- 
mittantur, sed confuse omnes servos suos vel ancillas is qui testa- 
mentum facit, liberos faeere voluerit, nulli penitus firma esse 
jubetur hoe ordine data libertas, sed omnes in servili condicione, 
qui hoc ordine manumissi sunt, permanebunt. Nam et si ita in 
testamento servorum manumissio adscripta fuerit, id est in circulo, 
uf qui prior, qui posterior nominatus sit, non possit agnosci, nulli 
ex his libertatem valere manifestum est, si agnosci non potest qui 
prior, qui posterior fuerit manumissus. (§ 3.) Nam si aliquis in 
aegritudine constitutus in fraudem hujus legis facere noluerit tes- 
tamentum, sed epistulis aut quibuscumque alis rebus servis suis 
pluribus quam per testamentum licet conferre voluerit libertates, 
et sub tempore mortis hoe fecerit, hi qui prius manumissi fuerint, 
usque ad numerum superius constitutum liberi erunt, qui vero post 
statutum numerum manumissi fuerint, servi sine dubio permane- 
bunt. (§ 4.) Nam si incolumis quoscunque diverso tempore manu- 
misit, inter eos qui per testamentum manumissi sunt nullatenus 
computentur.' 

$ 47. Thelex Fufia Caninia, passed under Augustus, was generally 
called the lex Furia Caninia before the manuscript of Gaius was 
reexamined by Studemund; it was abrogated by Justinian. See 
Inst. 1, 7. 


58 


DE PERSONIS. 


[1. 85. 48-54. 


DE HIS QUI 8UI VEL ALIENI IURIS SINT. 


$ 48. Sequitur de iure persona- 
rum alia diuisio. nam quaedam per- 
sonae sui iuris sunt, quaedam alieno 
iuri subiectae sunt. 

$ 49. Rursus earum personarum 
quae alieno iuri subiectae sunt, 
aliae in potestate, aliae in manu, 
alice in mancipio sunt. 

$ 50. Videamus nunc de his quae 
alieno iuri subiectaesint ; (nam) si 
cognouerimus quae istae personae 
sint, simul intellegemus quae sui 
luris sint. 

§ 51. Ac prius dispiciamus de iis 
qui in aliena potestate sunt. 


$ 52. In potestate itaque sunt 
serui dominorum. quae quidem po- 
testas iuris gentium est; nam apud 
omnes peraeque gentes animaduer- 
tere possumus dominis in seruos 
uitae necisque potestatem esse; et 
quodcumque per seruum adquiritur, 
id domino adquiritur. 

$ 53. sed hoc tempore neque ci- 
uibus Romanis, nec ullis aliis ho- 
minibus qui sub imperio populi 
Romani sunt, licet supra modum 
et sine causa in seruos suos sae- 
uire ; nam ex constitutione impera- 
toris Ántonini qui sine causa ser- 
uum suum occiderit, non minus 
teneri iubetur, quam qui alienum 
seruum occiderit, sed et maior 
quoque asperitas dominorum per 
eiusdem principis constitutionem 
coercetur; nam consultus a qui- 
busdam praesidibus prouinciarum 
de his seruis qui ad fana deorum 
uel ad statuas principum confu- 
giunt, praecepit, ut si intolerabilis 
uideatur dominorum saeuitia, co- 
gantur seruos suos uendere. et 
utrumque recte fit; male enim 
nostro iure uti non debemus; qua 
ratione et prodigis interdicitur bo- 
norum suorum administratio. 


§ 48. Another division in the law 
of Persons classifies men as either 
dependent or independent. 


$ 49. Those who are dependent 
or subject to a superior, are either 
in his power, in his hand, or in his 
mancipation. 

$ 50. Let us first explain what 
persous are dependent on a superior, 
and then we shall know what per- 
sons are independent. 


§ 51. Of persons subject to a 
superior, let us first examine who 
are in his power. 

§ 52. Slaves are in the power of 
their proprietors, a power recog- 
nized by Gentile law, for all nations 
present the spectacle of masters in- 
vested with power of life and death 
over slaves ; and by the Roman law 
the owner is entitled to everything 
acquired by the slave. 

§ 53. But in the present day nei- 
ther citizens of Rome, nor any other 
persons under the empire of the 
people of Rome, are permitted to in- 
dulge in excessive orcauseless harsh- 
ness towards their slaves. By a 
constitution of the Emperor Pius 
Antoninus, a man who kills a slave 
of whom he is owner, is as liable to 
punishment as a man who kills a 
slave of whom he is not owner: and 
inordinate cruelty on the part of 
owners is checked by another con- 
stitution whereby the same emperor, 
in answer to enquiries from pre- 
sidents of provinces concerning 
slaves who take refuge at temples 
of the gods, or statues of the em- 
peror, commanded that on proof 
of intolerable cruelty a proprietor 
should be compelled to sell his 
slaves: and both ordinances are 
just, for it is proper that the abuse 
of a lawful right should be re- 


1. § 48-54.] DE POTESTATE DOMINICA. 59 


strained, a principle recognized in 
the interdiction of prodigals from 
the administration of their fortune. 
$54. Ceterum cum apud ciues $ 54. Citizens of Rome having 
Romanos duplex sit dominium two kinds of dominion, bonitary 
(nam uel in bonis uel ex iure Qui- and quiritary, or a union of boni- 
ritium uel ex utroque iure cuiusque tary and quiritary dominion, a slave 
seruus esse intellegitur), ita demum is in the power of an owner who 
seruum in potestate domini esse has bonitary dominion over him, 
dicemus, si in bonis eius sit, etiamsi even unaccompanied with quiritary 
simul ex iure Quiritium eiusdem  dominion; if an owner has only 
non sit; nam qui nudum ius Quiri- naked quiritary dominion he is not 
tium in seruo habet, is potestatem deemed to have the slave in his 
habere non intellegitur. power. 


§§ 52,58. The condition of the slave was at its worst m the golden 
period of Roman history. As soon as Rome found her power irre- 
sistible she proceeded to conquer the world, and each stage of conquest 
was the reduction of a vast portion of mankind to slavery. 30,000 
Tarentines were sent as slaves to Rome by Fabius Cunctator, the 
eaptor of Tarentam ; 150,000 Epirote by Paulus Aemilius, the sub- 
Jagator of Epirus. Julius Caesar retrieved his shattered fortunes 
by enormous operations in the slave market during his campaign 
in Gaul. Thus, unfortunately for the slave, the slave market was 
continually glutted and slave life was cheap. The condition of the 
slave gradually but slowly improved under the emperors. <A lex 
Petronia of uncertain date required a slave-owner to obtain the 
permission of a magistrate before exposing a slave to be torn to 
pieces by wild beasts, and only allowed such permission to be 
granted for some offence committed by the slave, Dig. 48, 8, 11, 2. 
Claudius prohibited killing slaves who fell sick, and enacted that 
the exposure of a slave to perish in his sickness should operate as 
a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7.6.8. 
Hadrian deprived proprietors of the power of putting slaves to 
death without a judicial sentence, Spartian, Had. 18. Antoninus 
Pius declared a proprietor who killed a slave to be guilty of murder, 
and subject to the penalty of the lex Cornelia de sicariis. We read 
In Justinian’s Digest: Qui hominem occiderit punitur non habita 
differentia cujus conditionis hominem interemit, Dig. 48, 8, 12. 
‘Homicide is punished without regard to the status of the person 
killed.’ The punishment was generally capital, Dig. 48, 8, 8, 5. 
‘The law of Comelius Syll touching assassins and poisoners, 
punishes with transportation to an island and forfeiture of all pro 


60 ! DE PERSONIS. [1. § 55: 


perty. But at present the punishment is usually capital, unless 
the criminal is of exalted station ; humbler criminals are thrown to 
wild beasts, only criminals of higher rank are transported.’ Hadrian 
prohibited the castration of a slave, consenting or not consent- 
ing, under penalty of death, Dig. 48, 8, 4,2. Antoninus Pius also 
protected slaves against cruelty and personal violation, Dig. 1, 6, 2. 
The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates, 
legibus cognita, thus placing slaves under the protection of 
the law, and almost recognizing in slaves some of the primordial 
rights of humanity, except that, as already observed, obligation 
does not necessarily imply a correlative right. Roman law to the 
end, unlike other legislations which have recognized forms of 
slavery, refused to admit any rights in the slave. Florentinus, 
however, not long after the time of Gaius, admitted that slavery 
was a violation of the law of nature. Servitus est constitutio juris 
gentium qua quis domino alieno contra naturam subicitur, Dig. 1, 
5,4. ‘Slavery is an institution of Gentile law, making one man 
the property of another, in contravention of Natural law. Ulpian 
says the same: Quod attinet ad jus civile, servi pro nullis habentur, 
non tamen et jure naturali; quia quod ad jus naturale attinet, omnes 
homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a 
slave is nothing, but not before the Naturallaw; for in the eye of 
Natural law all men are equal.’ The belief in a Natural law, more 
venerable than any Civil law, was very prevalent in the ancient 
world, and one of the principal contributions of Philosophy to 
civilization. 

The absolute privation of all rights was sometimes expressed by 
saying that a slave has no persona, caput, or status: e.g. Servos 
quasi nec personam habentes, Nov. Theod. 17. ‘Slaves being re- 
garded as impersonal men. Servus manumissus capite non minui- 
tur quia nullum caput habet, Inst. l, 16, 4. ‘A slave by manu- 
mission loses no rights, having none to lose. Cum servus manu- 
mittitur, quia servile caput nullum jus habet, ideo nec minui potest, 
eo die enim incipit statum habere, Dig. 4, 5, 4. ‘A slave who is 
manumitted, having no rights, cannot lose any, for all his righte 
date from the day of his manumission. The word ‘persona,’ how- 
ever, is sometimes applied to slaves: e.g. in personam servilem 
nulla cadit obligatio, Dig. 50, 17,22, * A slave can owe no obliga- 
tion. So is caput in one of the above quoted passages, § 54. 
Cf. $ 58 and 2 $ 40. 


1.§ 55. ] 


DE PATRIA 


§ 55. Item in potestate nostra 
sunt liberi nostri quoe iustis nuptiis 
procreauimus. quod ius proprium 
ciuium Romanorum est; fere enim 
nulli alii sunt homines qui talem in 
filios suos habent potestatem qualem 
nos habemus, idque diuus Hal|dri- 
anus edicto, quod proposuit de his 
qui sibi liberisque suis ab eo ciui- 
tatem Romanam petebant, significa- 
uit. nec me praeterit Galatarum 


DE PATRIA POTESTATE. 


61 


POTESTATE. 


$ 55. Again, a man has power 
over his own children begotten in 
civil wedlock, a right peculiar to 
citizens of Rome, for there is scarcely 
any other nation where fathers are 
invested with such power over their 
children as at Rome; and this the 
late Emperor Hadrian declared in 
the edict he published respecting 
certain petitioners for a grant of 
the Roman franchise to themselves 


gentem credere in potestate pa- 


and their children; though I am 
rentum liberos esse, 


aware that among the Galatians 
parents are invested with power 
over their children. 


§ 55. The most peculiar portion of the Roman law of status is 
that which refers to patria potestas, or the relation of paterfamilias 
to filiusfamilias. Patria potestas was founded on consuetudinary 
law (quum jus potestatis moribus sit receptum, Dig. 1, 6, 8), 
and may be considered under two heads, (1) as regarding the 
person of the son, (2) as regarding proprietary rights acquirable 
by the son. 

I. Over the person of the child the father had originally a power 
of life and death. Patribus jus vitae in liberos necisque potestas 
olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parri- 
eidiis, enumerating the persons who could be guilty of parricide, or 
the murder of a blood relation, omits the father, Dig. 48, 9. Com- 
pere also the formula of Adrogatio, § 98, commentary. But in 
later times this power was withdrawn. Hadrian condemned to 
deportation à father who in the hunting-field killed his son who 
had committed adultery with his stepmother, Dig. 48, 9, 5. Con- 
stantine, A.D. 319, included killing by a father under the crime of 
parricide, Cod. 9, 17. Fathers retained the power of moderate 
chastisement, but severe punishment could only be inflicted by the 
magistrate, Cod. 8, 47, 3. Si atrocitas facti jus domesticae emen- 
dationis excedat, placet enormis delicti reos dedi judicum notioni, 
Cod. 9, 15. Trajan compelled a father to emancipate a son whom 
he treated with inhumanity, Dig. 37, 12, 5. It was originally at 
the option of the parent whether he would rear an infant or expose 
it to perish, but in later times exposition was unlawful, Valentinian, 
Valens, and Gratian, A.D. 874, Cod. 8, 52, 2. 


62 ' DE PERSONIS, [x.§ 55. 


Originally also parents had the power of selling (mancipandi) 
their children into bondage, thus producing a capitis minutio, or 
degradation of status. In fact, the patriarchs of the Roman race 
were slave-dealers who, like some savage tribes in Africa and else- 
where, trafficked in the bodies of their own children. We must note, 
however, that the bondage into which a Roman father sold his 
children was, at least at the time at which this institution is known 
to us, a limited degree of subjection: the mancipation could only 
be made to another Roman citizen, and the bondsman continued to 
be liber and civis, But this power also was withdrawn in more 
civilized times. A law of Diocletian and Maximian declares the 
sale, donation, pledging of children to be unlawful, Cod. 4, 48, 1. 
A rescript of one of the Antonines commences in the following 
terms, Cod. 7, 16, 1: ‘You are guilty, by your own admission, of 
an unlawful and disgraceful act, as you state that you sold your 
freeborn children? Justinian increased the penalties of the law 
against creditors who took possession of the freeborn child of a 
debtor as a security for a debt. He enacted that the creditor 
should forfeit the debt, should pay an equal sum to the child or 
parent, and in addition should undergo corporal punishment, No- 
vella, 184, 7. In the time of Gaius, the only genuine sale of a 
child into bondage was in the case of noxal surrender, i.e. when a 
father sued for the trespass of a child, in lieu of damages, surren- 
dered his delinquent son or daughter as a bondsman (mancipium) to 
the plaintiff, § 140. . The sale of the child in adoption and emanci- 
pation was merely fictitious ; even noxal surrender was practically 
obsolete in the time of Justinian, by whom it was formally abolished, 
Inst. 4, 8, 7. Constantine, however, in cases of extreme poverty 
permitted parents to sell their children immediately after. birth 
(sanguinolentos), and this constitution was retained in the code of 
Justinian, Cod. 4, 43, 2. 

2. In respect of property, filiusfamilias was capable of obligation 
but not of right; he could be debtor but not creditor; in any 
transaction where an independent person (sui juris) would have 
been creditor, filiusfamilias was merely a conduit-pipe through 
which a right vested in his father as creditor or proprietor. Even 
in domestie relations filiusfamilias could only figure as inferior, not 
as superior; he owed obedience, but could not exercise command 
(jus, in the special sense which it has in the phrases, sui juris, alieni 
juris); he could only be an instrument by which his father acquired 


1.555] DE PATRIA POTESTATE. 63 


a right of command. Thus, filiusfamilias had commercium, and 
could take by mancipatio, but the property he thus took vested in 
his father; he could make a valid contract, but the contractual 
right vested in his father; he had testamentifactio, that is, he could 
be witness, libripens, familiae emptor, but he could not make a will, 
for he had no property to leave; and if he took under a will as 
legatee or heir, the legacy or succession vested in his father: cf. 2, 
87,8, 163. He had the other element of civitas, connubium ; that 
is, he could contract a civil marriage and beget civil children; but 
the patria potestas over these children vested not in the father but 
m the grandfather, and if the marriage was accompanied with 
power of hand (manus), marital power over the wife, this vested 
not in the husband but in the husband's father. Any property 
which the son was allowed by his father to manage was called his 
peculium, i.e. was held on the same terms as property which a slave 
administered by permission of his proprietor. In respect of debts 
which he incurred, the son did not act as conduit-pipe, but (except 
for a loan of money, which the Sc. Macedonianum made irrecover- 
able) was liable in his own person, Dig. 44, 7, 39. ‘A son under 
power incurs obligation by the same titles, and may be sued on the 
same grounds of action as an independent person. The same rule 
applied to the son as to the slave: Melior conditio nostra per servos 
fieri potest, deterior fieri non potest, Dig. 50,17, 138. ‘The melio- 
ration of his proprietor's condition is in the power of a slave, but 
not the deterioration. 

In his political functions (munus publicum), filiusfamilias was 
entirely beyond the sphere of patria potestas. Quod ad jus publicum 
attinet non sequitur jus potestatis, Dig. 86, 1, 14, 1. ‘The magis- 
terial power of a filiusfamilias is unaffected by patria potestas.' 
Thus, a son could act as praetor, ibid., or as judex, Dig. 5, 1, 17, in 
a suit to which his father was a party. He could even preside as 
magistrate over his own adoption or emancipation ; Si consul vel 
praeses filiusfamilias sit, posse eum apud semetipsum vel emanci- 
pari vel in adoptionem dari constat, Dig. 1, 7, 3, (which makes it 
doubtful how far political functions were suspended even by the 
state of mancipium or bondage) He could also be appointed 
guardian (tutor), for guardianship (tutela) was held to be a publie 
office, Dig. 1, 6, 9. ‘A filiusfamilias in his public relations is 
deemed independent, for instance, as magistrate or as guardian. 

The above-stated incapacities of filiusfamilias were subject, how- 





64 | DE PERSONIS. [1.§55. 


ever, to certain exceptions and modifications, which may now be 
briefly considered. 

a. In certain cases filiusfamilias had an anomalous right of suing 
in his own name (suo nomine) i.e. not merely as procurator or 
attorney of his father, and even in opposition to his father's wishes, 
Dig. 44, 7, 9. ‘A filiusfamilias can only sue in his own name for 
outrage, by interdict for violent or clandestine disturbance, for 
deposit, for loan, according to Julian. These suits, which, in spite 
of the statement in the text, were not the only, though perhaps the 
oldest, actions maintainable by & person under power, deserve a 
brief explanation. Without the right to - Honour, one of the 
primordial rights of humanity, a man is scarcely a freeman, and, 
accordingly, this right vests definitively in filiusfamilias, and does 
not again pass out of him to vest in his father. Any dishonouring 
outrage, therefore, gave filiusfamilias a right of bringing a civil 
action, called actio injuriarum, in his own name, though the pater- 
familias as a rule maintained the action both on his own account 
and that of his son; if, however, he was unable to do so, or his 
character was dubious, the son could proceed by himself (cf. 8, 221, 
and Dig. 47, 10, 17, § 10, etc.), although any pecuniary damages 
that he thereby recovered, being in the nature of property, were 
recovered for his father. 'The son under power was recognized, 
then, as invested with a vindictive right, though not with a pro- 
prietary right. The actio injuriarum was an action in bonum et 
sequum concepta (compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34, pr.), 
that is, the terms of the formula (conceptio) directed the judex to 
assess the damages not on any principle of civil law, but by his 
own sense of natural equity (aequum et bonum), and this form may 
have helped to make the action maintainable by one who on the 
principles of civil law was incompetent to sue. The interdict quod 
vi aut clam was maintainable by filiusfamilias on the same principle 
as the actio injuriarum, being a means of vindicating a dishonouring 
outrage inflicted on filiusfamilias by some violent disturbance of real 
property in defiance of his prohibitio or summons to stay operations 
and let the matter abide the result of a judicial trial. On the 
same principle a filiusfamilias disinherited or passed over in the 
will of his mother or maternal grandfather, as such disinheritance 
or pretermission was an implied imputation of turpitude or un- 
worthiness and therefore dishonouring, might without the consent 
of his father (Dig. 5, 2, 22, pr.) vindicate his honour by impeaching 


r.$55.] DE PATRIA POTESTATE. 66 


the will of inofficiositas (immorality, or want of natural affection), 
although such querela inofficiosi testamenti, being in another point 
of view an hereditatis petitio or real action, was not properly 
maintainable. by a filiusfamilias. If the plaintiff filiusfamilias 
could show that the disinheritance or omission was not due to his 
own demerite, he invalidated the will by a fictitious presumption 
of the testator’s lunacy and made the testator intestate; and thus 
filiusfamilias vindicated his own character, but whatever share he 
recovered in the intestate succession vested in his father. 

- The right of filiusfamilias to sue by actio commodati or depositi 
was founded on a different principle. Suppose that filiusfamilias - 
had borrowed or hired a thing that he afterwards lent or deposited ; 
his father, not being responsible for his son’s debte, would not be 
interested in the recovery of the thing, and therefore was not 
entitled to sue the depositary or borrower: the son, however, would 
be answerable to the original lender or letter, and accordingly was 
allowed to sue in his own name. To avoid, however, contravening 
the civil law by affirming a proprietary right vested in a filiusfami- 
lias, he did not sue by a formula in jus concepta, i.e. of the form, si 
paret oportere, ‘if the plaintiff establish a right,’ but by a formula 
in factum, of the form, si paret factum esse, ‘if the plaintiff establish 
a fact. It is remarkable that Gaius instances precisely the actio 
commodati and the actio depositi as having two forms, one in 
jus and another in factum (4$ 47); and we may conjecture that the 
latter was invented to be used under these very circumstances by 
filiusfamilias. 

b. The latter periods of Roman law present a gradual emanci- 
pation of filiusfamilias by successive inventions of new kinds of 
peculium. As early as the time of Augustus the earnings of a 
filiusfamilias in military service were called castrense peculium and 
belonged to him in absolute proprietorship, Filiifamilias in castrensi 
peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2. ‘A filius- 
familias in respect of his military acquisitions has the right of a 
paterfamilias. Subsequently the earnings of filiifamilias in the 
civil service of the State, in holy orders, in the liberal professions, 
were assimilated to their earnings in the army, under the name of 
peculium quasi castrense. Further, whatever came to the son from 
his mother or from the maternal line, or from any source but the 
paternal estate, was called peculium adventicium, and in this the 
father had only a usufruct or life estate, while the son had the 


F 


66 DE PERSONIS. [1.85 56-64. 


reversion in fee (proprietas). Only such peculium as was derived 
from the paternal estate (ex re patris) continued, under the name of 
peculium profecticium, subject to the old rules and belonged in 


absolute property to the father. 


Cf. 2 $ 87 comm, Inst. 2, 9, 


6 1. 11, § 6. 12, pr. 3, 10, $ 2. 28 pr. 

The Gallic race, of which the Galatians were a branch, are men- 
tioned by Caesar as having the institution of patria potestas: Vin 
in uxores, sicuti in liberos, vitae necisque habent potestatem, De 


Bello Gall. .6, 19. 
death over wives and children.’ 


“Husbands and fathers have power of life and 


St. Paul in his Epistle to the 


-Galatians alludes to the peculiarity of their law: ‘The heir, as long 
as he is a child, differeth nothing from a servant, though he be lord 


ef all;’ 4, 1. 


DE NUPTIIS. 


$ 56. | Itaque liberos suos in po- 
testate habent ciues Romani,| si ciues 
Romanas uxores duxerint, ue] etiam 
Latinas peregrinasue cum quibus 


conubium habeant; cum enim conu-. 


bium id efficiat, ut liberi patris con- 
dicionem sequantur, euenit ut non 
(solun) ciues Romani fiant, sed 
etiam in potestate patris sint. 


$ 57. Unde ef ueteranis quibus- 
dam concedi solet principalibus 
constitutionibus conubium cum his 
Latinis peregrinisue quas primas 
post missionem uxores duxerint; 
et qui ex eo matrimonio nascuntur, 
et ciues Romani et in potestate 
parentum fiunt. 


$58. | Non tamen omnes nobis 
uxores ducere licet ; | nam a quar- 
undam nuptiis abstinere debemus. 

$ 59. Inter eas enim personas 
quae parentum liberorumue locum 
inter se optinent, nuptiae contrahi 
non possunt, nec inter eas conubium 
est, ueluti inter patrem et filiam, 
uel inter matrem et filium, uel inter 
auum et neptem; et si tales per- 
sonae inter se coierint, nefarias et 
incestas nuptias contraxisse dicun- 


$ 56. A Roman citizen contracts 
civil wedlock and begets children 
subject to his power when he takes 
to wife a citizen of Rome or a Latin 
or alien with whom a Roman has 
capacity of civil wedlock ; for as 
civil wedlock has the effect of giving 
to the children the paternal con- 
dition, they become by birth not 
only citizens of Rome, but also sub- 
ject to the power of the father. 

§ 57. And for this purpose vete- 
rans often obtain by imperial con- 
stitution a power of civil wedlock 
with the first Latin or alien woman 
they take to wife after their dis- 
charge from service, and the chil- 
dren of such marriages are born 
citizens of Rome and subject to 
paternal power. 

§ 58. But it is not any woman 
that can be taken to wife, for some 
marriages are prohibited. 

§ 59. Persons related as ascend- 
ent and descendent are incapable of 
lawful marriage or civil wedlock, 
father and daughter, for instance, 
mother and son, grandfather and 
granddaughter: and if such rela- 
tions unite, their unions are called 
incestuous and nefarious ; and so 
absolute is the rule that merely 


1. $$ 56-64. | 


tur. et haec adeo ita sunt, ut 
quamuis per adoptionem parentum 
liberorumue loco sibi esse coeperint, 
non possint inter se matrimonio 
coniungi, in tantum, ut etiam dis- 
soluta adoptione idem iuris maneat ; 
itaque eam quae mihi per adoptio- 
nem filiae aw neptis loco esse 
coeperit, non potero «xorem ducere, 
quamuis eam emancipauerim. 

$ 60. Inter ea3 quoque personas 
quae ex transuerso gradu cognatione 
iunguntur, est quaedam similis 
obseruatio, sed non tanta. 

$ 61. Sane inter fratrem et soro- 
rem prohibitae sunt nuptiae, siue 
eodem petre eademque matre nati 
fuerint, siue alterutro eorum ; sed 
si qua per adoptionem soror mihi 
ease coeperit, quamdiu quidem con- 
stat adoptio, sane inter me et eam 
nuptiae non possunt consistere; 
cum uero per emancipationem ad- 
optio dissoluta sit, potero eam 
uxorem ducere; sed et si ego eman- 
cipatus fuero, nihil inpedimento 
erit nuptiis. 

$ 62. Fratris filiam uxorem du- 
eere licet; idque primum in usum 
uenit, cum diuus Claudius Ágrippi- 
nam fratris sui filiam uxorem dux- 
isset; sororis uero filiam uxorem 
ducere non licet. et haec ita princi- 
palibus conatitutionibus siguifican- 
tar. Item amitam et materteram 
uxorem ducere non licet. 

$ 63. Item eam quae mihi quon- 
dam socrus aut nurus aut priuigna 
aut nouerca fuit, ideo autem dixi- 
mus ‘quondam, quia si adhuc con- 
stant eae nuptiae, per quas talis 
adfinitas quaesita est, alia ratione 
mihi nupta esse non potest, quia 
meque eadem duobus nupta esse 
potest, neque idem duas uxores 
habere. 


$ 64. Ergo si quis nefarias atque 
incestas nuptias contraxerit, neque 
uxorem habere uidetur neque li- 


DE NUPTIIS$. 


67 


adoptive ascendents and descendenta 
are for ever prohibited from inter- 
marriage, and dissolution of the 
adoption does not dissolve the 
prohibition: so that an adoptive 
daughter or granddaughter cannot 
be taken to wife even after emanci- 
pation. 


§ 60. Collateral relatives also are 


subject to similar prohibitions, but 


not so stringent. 


§ 61. Brother and sister, indeed, 
are prohibited from intermarriage 
whether they are born of the same 
father and mother or have only one 
parent in common: but though an 
adoptive sister cannot, during the 
subsistence of the adoption, become 
a man's wife, yet if the adoption is 
dissolved by her emancipation, or if 
the man is emancipated, there is no 
impediment to their intermarriage. 


$ 62. A man may marry his bro- 
ther's daughter, a practice first in- 
troduced when Claudius married 
his brother's daughter Agrippina, 
but may not marry his sister's 
daughter, a distinction laid down 
in imperial constitutions, nor may 
he marry his father’s sister or his 
mother's sister. 

§ 63. He may not marry one who 
has been his wife’s mother or his 
son's wife or his wife's daughter or 
his father’s wife. I say, one who 
has been so allied, because during 
the continuance of the marriage 
that produced the alliance there 
would be another impediment to 
the union, for & man cannot have 
two wives nor a woman two hus- 
bands. 

$ 64. A man who contracts a 
nefarious and incestuous marriage 
is not deemed to have either a wife 


Pa 


68. 


beros; itaque hi qui ex eo coitu 
nascuntur, matrem quidem habere 
uidentur, patrem uero non utique; 
nec ob id in potestate eius (sunt, 
sed tales) sunt quales sunt hi quos 
mater uulgo concepit; nam et hi 
patrem habere non intelleguntur, 
cum ts etiam incertus sit; unde 
solent spurii filii appellari, uel a 
Graeca uoce quasi eropddny concepti, 
uel quasi sine patre filii. 


DE PERSONIS. 


or children; for the offspring of 
such a union are deemed to have 
a mother but no father, and there- 
fore are not subject to paternal 
power; resembling children born 
in promiscuous intercourse, who 
are deemed to have no father, be- 
cause their true father 1s uncertain, 
and who are called bastards either 
from the Greek word denoting illicit 
intercourse or because they are 
fatherless. 


In any treatise on the law of marriage that we open we shall 
meet the expression, the marriage contract; and this suggests 
the inquiry, is marriage a contract, and, if so, to which class of 
Roman contracts, Verbal, Literal, Real, Consensual, 8 § 89, is 
Roman marriage to be referred ? Most writers assume that 1t was 
a, Consensual contract, on the strength of texts like the following: 
Nuptias non concubitus sed consensus facit, Dig. 85, 1,15. * Mar- 
riage does not depend on cohabitation, but on consent.’ Ortolan, 
however, remarks that consensual contracts could be formed by 
absent contractors, Inst. 8, 2, whereas a marriage could not be con- 
tracted in the absence of the wife, Paul, 2, 19, 18; and shows that, 
besides the consent of the parties, delivery of possession of the wife 
io the husband was required, from which he infers that Roman, 
marriage was not a Consensual but à Real contract. It is true that 
marriage might be contracted in the absence of the husband; but 
this was only under certain conditions, Dig. 28, 21,5. ‘A man in 
his absence may marry by letter or message, provided the woman is 
led to his house: a woman in her absence cannot marry by letter 
or message, for the leading must be to the husband’s house, as the 
domicile of the married pair.’ And precisely the same conditions 
were sufficient in other cases to constitute delivery of possession, 
Dig. 41, 2, 18, 2.. * If a vendor deposit any article in my house by 
my order, I have possession of it though I have never touched it.’ 
Consensus, then, in the above-quoted passage, is not opposed to 
delivery of possession, but to cohabitation, or to the use of certain 
words or certain documents, or to the solemn and graceful cere- 
monial with which custom surrounded the matrimonial union. 

. Real contracts, however, are executory on one side and executed 
on the other, whereas in the conjugal relation both parties are on 
the same footing in respect of execution ; and: we may ask whether 


1. $§ 56-64.) DE NUPTIIS; 69 


marriage is a contract at all; whether it does not rather fall under 
the opposite category of alienation or conveyance, Instead of finding 
its analogon in locatio-conductio or societas (consensual contracts) 
or pignus or commodatum (real contracts), may we not rather, with 
Savigny, find it in transfer of dominion or other creations of real 
right, such as adoption, the concession of patria potestas, or emanci- 
pation, investiture with independent status? Did not tradition, or 
delivery of possession, operate to engender, not a personal right, as 
in real contract, but a real right, as in alienation of ownership, 2 
§ 65 ? This seems the truer view, and if we use the expression, mar- 
riage contract, we must use the term contract not in a specific sense, 
as opposed to conveyance, but in the generic sense of bilateral 
disposition (as opposed to unilateral disposition, e.g. testation) a 
sense embracing both contract proper and conveyance, and extending 
beyond the sphere of Property into the relations of domestic life. 
Contract proper and conveyance, though generally contrasted in 
jurisprudence, have much in common. If contract in its narrower 
sense is defined to be the concurrence of two manifestations of will 
creating a jus in personam, and conveyance the concurrence of two 
manifestations of will creating a jus in rem, the concurrence of two 
manifestations of will creating a jus is an element common to both 
terms of the comparison, and this common element may be denomi- 
nated in a generic sense a contract. Contract in the narrower 
sense may then be distinguished as an obligative contract and con- 
veyance as a translative contract, and the latter head will include 
the contract of marriage, if we continue to employ this expression. 
As in respect of property or dominion we find in Roman law the 
distinction of Quiritary and Bonitary, that is, of civil and gentile, 
ownership, so in respect of the conjugal relation we find the distinc- 
tion of Roman or civil marriage (connubium, justae nuptiae, justum 
matrimonium) and gentile marriage (nuptiae, matrimonium), of 
which the former alone was valid at civil law (connubium est uxoris 
jure ducendae facultas, Ulpian, 5, 8; * connubium is the capacity of 
marriage valid by civil law ^) and capable of producing patria potestas 
and agnatio, though the latter produced legitimate children (justi as 
opposed to naturales liberi) and cognatio or natural relationship. 
Capacity of civil marriage (connubium) is (a) absolute and (2) 
relative. (a) Only citizens have the absolute capacity of civil 
marriage, and such Latins and aliens as are specially privileged, 
$56: slaves are incapable both of civil and gentile marriage. 





70 DE PERSONIS. [1. $$ 56-64. 


(2) Capacity of civil marriage is, however, always relative to another 
person who forms the other party to the union. A citizen only has 
connubium with a citizen or with such Latins and aliens as are 
specially privileged ; and, before the lex Papia Poppoea was passed, 
a freeborn citizen (ingenuus) had no connubium with a citizen by 
manumission (libertinus). Lege Papia cavetur omnibus ingenuis 
praeter senatores eorumque liberos libertinam uxorem habere licere, 
Dig. 28, 2,28. ‘The lex Papia permits all freeborn citizens, except 
senators and their children, to marry freedwomen.’ 

$ 58. The prohibition of marriage between collateral relations, 
originally perhaps extended as far as there were legal names for the 
relationship, ie. as far as the sixth degree, for Tacitus mentions 
that second cousins were once incapable of intermarriage, sobri- 
narum diu ignorata matrimonia, Ann. 12, 6; the prohibition was 
subsequently reduced to the fourth degree, i.e. to the intermarriage 
of first cousins (consobrini), Ulpian, 5,6; and finally to the third 
degree ; with this restriction, however, that if one of the collaterals 
was only removed by one degree from the common ancestor (stipes 
communis), he was regarded as a quasi ascendent (loco parentis) and 
incapable of intermarriage at any degree: thus, a man could not 
marry his brother's or sister's granddaughter, though only related 
in the fourth degree, Cod.5, 4,18. Degrees in the direct line were 
reckoned by counting the generations or births to which a person 
owed his descent from an ancestor: thus, a man is one degree from 
his father, two from his grandfather : in the transverse or collateral 
line, by adding the degrees which separate each collateral from the 
common stock; thus, a man is two degrees from his sister, three 
from his niece. 

§ 62. Constantine restored the ancient law and prohibited mar- 
riage with a brother’s daughter as incestuous, Cod. Theod. 1, 2. 

§ 63. Alliance (affinitas) is the relationship of a person to the kin 
(cognates) of a spouse. The husband is allied to the kin of the wife, 
the wife to the kin of the husband ; but there is no alliance between 
the kin of the husband and the kin of the wife. The following are 
some of the names given to these relationships, In the ascending 
line the father and mother of the wife or husband are socer and 
socrus (father-in-law, mother-in-law), and in relation to them the 
husband of the daughter and wife of the son are gener and nurus 
(son-in-law, daughter-in-law). In the descending line the children 
of the spouse are privignus and privigna (step-son, step-daughter), 


1. $ 65-75.] DE ERRORIS CAUSAE PROBATIONE. 71 


and in relation to them the husband of the mother and the wife of 
the father are vitricus and noverca (step-father and step-mother). 
In the collateral line the husband’s brother is levir (brother-in-law), 
the husband’s sister is glos (sister-in-law). Intermarriage with allies 
m the direct line, or their ascendents or descendents, was absolutely 
prohibited ; collateral alliance was no impediment in the time of 
Gaius, but at a later period marriage with a deceased brother’s 
wife or a deceased wife’s sister was forbidden, Cod. 5, 5, 5 

To the marriage of a filius- or filia-familias the consent of the 
father was required: but if he withheld it without a reason he 
could be compelled by the magistrate to give it, and, in the case of 
a daughter, to provide a dower, D. 28, 2, 19: one of several in- 
stances in which, as the condition of the validity of a title, when 
a voluntary action could not be obtained, the legislator substituted 
a compulsory action, instead of simply declaring the action unne- 
eeseary. See § 190, comm. 


DE ERRORIS CAUSAE PROBATIONE. 


$ 65. | Aliquando autem euenit, ut 
qui statim ut na|ti sunt, 
parentum in potestate non fiant, ii 
postea tamen redigantur in potes- 
tatem. 

§ 66. Veluti si Latinus ex lege 
Aelia Sentia uxore ducta filium 
procreauerit aut Latinum ex Latina 
sut ciuem Romanum ex ciue Ho- 
mana, non habebit eum in potestate; 
sed si poste& causa probata tus 
(Quiritium) consecutus. fuerit, m- 
mul eum in potestate sua habere 
incipit. 


$67. Item si ciuis Romanus 
Latinam, aut peregrinam uxorem 
duxerit per ignorantiam, cum eam 
ctuem Romanam esse crederet, et 
filium procreauerit, hic non est in 
potestate eius, quia ne quidem ciuis 
Romanus est, sed aut Latinus aut 
peregrinus, id est eius condicionis 
cuius et mater fuerit, quia non 
aliter quisque ad patris condicionem 
accedit, quam si inter patrem et 
matrem eius conubium sit; sed ex 
senatusconsulto permittitur causam 


$ 65. It sometimes happens that 
children when first born are not in 
their father's power, but are subse- 
quently brought into subjection to 
him. | 

$ 66. Thus, under the.lex Aelia 
Sentia a Latin who marries and 
begets & son of Latin status by a 
Latin mother, or a citizen of Rome 
by a Roman mother, is not invested 
with power over him ; but on proof 
of his above-mentioned statutory 
title, he becomes a citizen of Rome 
along with his son, who is hence- 
forth subject to his power. 

$ 67. Again, if a Roman citizen 
marry a Latin or an alien woman 
in a mistaken belief that she is a 
citizen of Rome, the son whom he 
begets is not in his power, not being 
born a citizen of Rome, but a Latin 
or an alien, that is to say, of the 
same status as his mother, for a 
child is not born into the condition 
of his father unless his parents had 
capacity of civil marriage: but a 
senatusconsult allows the father to 
prove a cause of justifiable error, 


72 DE PERSONIS. 


erroris probare, et ita uxor quoque 
et filius ad ciuitatem Romanam 
perueniunt, et ex eo tempore incipit 
filius in potestate patris esse. idem 
iuris est si eam per ignorantiam 


uxorem duxerit quae dediticiorum 


numero est, nisi quod uxor non fit 
ciuis Romana. 


$ 68. Item si ciuis Romana per 
errorem nupta sit peregrino tam- 
quam ciui Romano, permittitur ei 
causam erroris probare, et ita filius 
quoque eius et maritus ad ciuitatem 
"Romanam perueniunt, et aeque 
simul incipit filius in potestate 
petris esse, idem iuris est si pere- 
grino tamquam Latino ex lege Áelia 
Sentia nupta sit; nam et de hoc 
specialiter senatusconsulto cauetur. 
idem iuris est aliquatenus si ei qui 
dedificiorum numero est, tamquam 
ciui Romano aut Latino e lege Aelia 
Sentia nupta sit ; nisi quod scilicet 
qui dediticiorum numero ést, in sua 
condicione permanet, et ideo filius, 
quamuis fiat ciuis Romanus, in po- 
testatem patris non redigitur. 


§ 69. Item si Latina peregrino, 
cum eum Latinum esse crederet, 
(e lege Aelia Sentia) nupserit, 
potest ex senatusconsulto filio nato 
causam erroris probare, et ita omnes 
fiunt ciues Romani, et filius in 
potestate patris esse incipit, 


$ 70. Idem constitutum est si 
Latinus per errorem peregrinam 
quasi Latinam aut ciuem Romanam 
e lege Aelia Sentia uxorem duxerit. 


[r. $$ 65-75. 


and then the wife and son become 
citizens of Rome, and the son is 
thenceforth in the power of the 
father. The same relief is given 
when & Roman citizen under a like 
misconception marries afreed woman 
having the status of a surrendered 
foe, except that the wife does not 
become a citizen of Rome. 

§ 68. Again, a female citizen of 
Rome who marries an alien in the 
false belief that he is a Roman citi- 
zen is permitted to prove a cause of 
justifiable error, and thereupon her 
son and husband become citizens of 
Rome, and simultaneously the son 
becomes subject to the power of his 
father. Similar relief is given if 
she marry an alien as a Latin in- 
tending to comply with the condi- 
tions of the lex Aelia Sentia, for 
this case is specially provided for in 
the senatusconsult. Similar relief 
is given to a certain extent if she 
marry a freedman having the status 
of a surrendered foe instead of a 
Roman citizen, or instead of a Latin, 
whom she intended to marry ac- 
cording to the provision of the lex 
Aelia Sentia, except that the freed- 
man husband continues of the same 
status, and therefore the son, though 


he becomes a citizen of Rome, does 


not fall under paternal power. — 

§ 69. Also a Latin freedwoman 
married according to the provision 
of the lex Aelia Sentia to an alien 
whom she believed to be a Latin, 
is permitted by the senatusconsult, 
on the birth of a son, to prove a 
cause of justifiable error, and there- 
upon they all become Roman citizens, 
and the son becomes subject to 
paternal power. 

§ 70. Exactly the same relief is 
given if a Latin freedman mis- 
takenly marry an alien woman in- 
stead of a Latin freedwoman, or a 
citizen of Rome, when he intended 


' to comply with the lex Aelia Sentia. 


i §65-75.] DE ERRORIS CAUSAE PROBATIONE. 


$ 71. Praeterea si ciuis Romanus 
qui se credidisset, Latinum esse, ob 
id Latinam (uxorem duxerit), per- 
mittitur es filio nato erroris causam 
probare, tamquam (5i) elege Aelia 
Sentia uxorem duxisset. Item his 
qui cum ciues Romani essent, pere- 
grinos se esse credidissent et pere- 
grinas uxores duxissent, permitti- 
tur ex senatusconsulto filio nato 
causam erroris probare; quo facto 
fiet | uxor ciuis Romana et filius 
non solum ad ciwita|tem Ro- 
manam peruenit, sed etiam in po- 
testatem patris redigitur. 


$ 72. Quaecumque de filio esse 
diximus, eadem et de filia dicta in- 
tellegemus. 

$73. Et quantum ad erroris 
causam probandam attinet, nihil 
interest cuius aetatis filius sit | 
|—, si minor anni- 
culo eit filius filiaue, causa probari | 
non potest. nec me praeterit in 
aliquo rescripto diui Hadriani ita 
esse constitutum, tamquam quod ad 
erroris quoque | causam probandam 


-| | ——imperator —— 
dedit. 

















$ 74. (Sed) si peregrinus ciuem 
Romanam uxorem duxerit, an ex 
senatusconsulto causam  pro|bare 
possit, quaesitum est. probare | 
causam non potest, quamuis ipse— 
——J|hoc ei specialiter concessum 
est. sed cum peregrinus ciuem Ro- 
manam uxorem duxisset et filio 
natoalias ciuitatem Romanam conse- 
cutus esset, deinde cum quaereretur 
an causam probare posset, rescripsit 
imperator Antoninus proinde posse 
eum causam probare, atque si pere- 
grinus mansisset. ex quo colligi- 
mus etiam peregrinum causam pro- 


bere posse. 





73 


6 71. Further, & Roman citizen 
who marries a Latin freedwoman, 
believing himself to be a Latin, is 
permitted on the birth of & son to 
prove the.cause of his mistake as 
if he had married according to the 
provisions of the lex Aelia Sentia. 
So, too, a Roman citizen, who 
marries an alien, believing himself 
to be an alien, is permitted by the 
senatusconsult on the birth of a son 
to prove the cause of the mistake, 
and then the alien wife becomes a 
Roman citizen, and the son becomes 
a Roman citizen and subject to the 
power of the father. 

§ 72. Whatever has been said of 
& son applies to a daughter. 


$ 73. And as to the proof of the 
cause of error, the age of the son or 
daughter is immaterial, except that, 
if the marriage was contracted with 
an intention to satisfy the require- 
ments of the lex Aelia Sentia, the 
child must be a year old before the 
cause can be proved. I am aware 
that a rescript of the late Emperor 
Hadrian speaks as if it was a con- 
dition of proof of the cause of error 
that the son must be a year old, 
but this is to be explained by the 
particular circumstances of the case 
in which this rescript was granted. 

: $74. It is a question whether 
an alien, who has married a Roman 
wife can prove cause of error under 
the 8. C. But when an alien, be- 
lieved to be a Roman citizen, mar- 
ried a Roman wife, and subsequent- 
ly to the birth of a son acquired the 
Roman franchise, the question aris- 
ing whether he could prove the 
cause of error, a rescript of An- 
toninus Pius decided that he was 
just as competent to prove as if 
he had continued an alien: from 
which may be gathered that an alien 
is competent to prove the cause of 
error, 


74 


§ 75. Ex Ais quae diximus ap- 
paret, siue ciuis Romanus pere- 
grinam siue peregrinus ciuem Ro- 
manam uxorem duxerit, eum qui 
nascitur peregrinum esse. sed siqui- 
dem per errorem tale matrimonium 
contractum fuerit, emendari uitium 
eius ex senatusconsulto licet (secun- 
dwm) ea quae superius diximus, 
si uero nullus error interuenerit, 
(sed) scientes suam condicionem 
ita colerent, nullo case emendatur 
uitium etus matrimonii. 


DE PERSONIS. 


[r. 6$ 76-87. 


$75. Hence it appears that a 
person born in marriage is an alien 
if his father was a Roman citizen 
and his mother an alien, or if his 
father was an alien and his mother 
& Roman citizen, though if the mar- 
riage was contracted under a mis- 
take, a remedy is supplied by the 
S. C. as above explained. No relief 
is given in any case, where the 
perties did not contract marriage 
under an error, but were aware of 
their condition. 


Mistake or error sometimes conferred a right which a party 


could not have acquired if he had not acted under a mistake. 


Thus, 





the lender of money to a filiusfamilias without the father’s consent 
had no legal claim to recover, unless he lent believing the borrower 
to be independent (sui juris), and possession could not mature by 
usucapion into ownership, unless it had a bona fide inception, i.e. 
unless it commenced in an honest misunderstanding. The relief of 
error had similarly important results in questions of status. Erroris 
eausam probare seems to mean ‘to make good a title by error,’ 
i.e. to establish, as title (causa) to relief, a probabilis error or justa 
ignorantia; i.e. & mistake not due to negligence; for negligence 
would exclude from relief. 

The subjection of a child to patria potestas by erroris causae 
probatio operated to invalidate a previously executed will, like the 
subsequent birth (agnatio) of a child in civil wedlock (suus pos- 
tumus), 2 $ 142. 

DE STATU LIBERORUM. 


$ 76. Loquimur autem de his 
scilicet, (inter) quos conubium non 
sit; nam alioquin si ciuis Romanus 
peregrinam cum qua ei conubium 
est, uxorem duxerit, sicut supra 
quoque diximus, iustum matrimo- 
nium contrahitur; et tunc ex his 
qui nascitur, ciuis Romanus est et 
in potestate patris erit. 


$ 77. Item si ciuis Romana pere- 
grino cum quo ei conubium est, 
nupserié, peregrinus sane procreatur 
et is iustus patris filius est, tam- 
quam si ex peregrina eum pro- 


$ 76. It is to be remembered that 
we are speaking of a marriage be- 
tween persons who have not the 
capacity of entering into a civil 
marriage with one another. When, 
however, a Roman takes to wife an 
alien privileged as I described ($ 56), 
he contracts a civil marriage, and 
his son is born a Roman citizen and 
subject to his power. 

$77. Soif s female Roman marry 
an alien with whom sbe has cape- 
city of civil marriage, her son is an 
alien and a lawful son of his father, 
just as if his mother hád been an 


E $$ 76-87.] 


creasset. hoc tamen tempore (ex) 
senatusconsulto quod auctore diuo 
Hadriano factum est, etiamsi non 
fuerit conubium inter ciuem Ro- 
manam et peregrinum, qui nascitur, 
iustus patris filius est. 

$ 78. Quod autem diximus inter 
ciuem Romanam  peregrinwnque 
—— qui | nascitur, peregrinum esse, 
lege Minicia cauetur, ( > | est, 
ut 5—— parentis condicionem se- 
quater. | eadem lege enim ex diuerso 
cauetur, «t 8i peregrinam, cum qua 
ei conubium non sit, uxorem dux- 
er. ciuis Romanus, peregrinus ex 
eo coitu nascatur. sed hoc maxime 
casu necessaria lex Minicia; nam 
remota ea lege diuersam condici- 
onem sequi debebat, quia ex eis 
inter quos non est conubium, qui 
nascitur, iure gentium matris con- 
dicioni accedit. qua parte autem 
iubet lex ex ciue Romano et pere- 
grina peregrinum nasci, superuacua 
uidetur; nam et remota ea lege 
hoc utique iure gentium | futurum 
erat. 





$ 79. Adeo autem hoc ita est, ut 
non | solum 
exterae nationes et gentes sed etjam 
qui Latini nominantur; sed ad alios 
latinos pertinet, qui proprios po- 
pulos propriasque ciuitates habe- 
bant et erant, peregrinorum numero. 








$80. Eadem ratione ex contrario 
ex Latino et ciue Romana, siue ex 
lege Aelia Sentia siue aliter con- 
tractum fuerit matrimonium, ciuis 
Romanus nascitur. fuerunt tamen 
qui putauerunt ex lege Aelia Sen- 
tia contracto matrimonio Letinum 
nasci quia uidetur eo casu per 


DE STATU LIBERORUM. 


75 


alien. At the present day, by à 
senatusconsult passed on the pro- 
position of the late Emperor Ha- 
drian, even without civil marriage 
the offspring of a Roman woman and 
alien is a lawful son of his father. 

$78. The rule we have stated 
that when a female Roman citizen 
marries an alien, the offspring is 
an alien, if there is no capacity of 
civil marriage between them, is 
enacted by the Lex Minicia, which 
also provides that when a Roman 
citizen marries an alien woman, 
and there is no capacity of civil 
marriage between them, their off- 
spring shall be an alien. This 
special enactment was required in 
the first case, as otherwise the child 
would follow the condition of the 
mother; for when there is no ca- 
pacity of civil marriage between 
perents, their offspring belongs to 
the condition of his mother by Gen- 
tilelaw. But the part of this law 
which ordains that the offspring of & 
Roman citizen and an alien womanis 
an alien seemsto besuperfluous, since 
without any enactment this would 
be so under the rule of Gentile law. 

$ 79. And so under this rule of 
Gentile law the offspring of a Latin 
freedwoman by a Roman citizen 
with whom she has no capacity 
of civil marriage is a Latin, al- 
though the statute did not refer 
to those who are now designated 
Latins; for the Latins mentioned 
in the statute are Latins in another 
sense, Latins by race and members 
of a foreign state, that is to say, 
aliens. 

§ 80. By the same principle, con- 
versely, the son of a Latin and a 
Roman woman is by birth a Roman 
citizen, whether their marriage was 
contracted under the lex Aelia Sen- 
tia or otherwise. Some, however, 
thought that if the marriage was 
contracted in accordance with the 


70 


legem Aecliam Sentiam et Iuniam 
conubium inter eos dari, et semper 
conubium efficit, ut qui nascitur 
patris condicioni accedat; aliter 
uero contracto matrimonio eum qui 
nascitur, iure gentium matris con- 
dicionem sequi et ob id esse ciuem 
Romanum. sed hoc iure utimur ex 
senatusconsulto, quo auctore diuo 
Hadriano significatur, ut quoqwo 
modo ex Latino et ciue Romana 
natus ciuis Romanus nascatur. 


$81. His conuenienter etam illud 
&enatusconsultum | diuo Hadriano 
auctore significauit, ut (qui) ex 
letino et peregrina, item contra 
(qui) ex peregrino et Latina nas- 
citur, is matris condicionem se- 
quatur. 

$82. Illud quoque his conse- 
quens est, quod ex ancilla et libero 
iure gentium seruus nascitur, et 
contra ex libera et seruo liber nas- 
citur. 

$ 83. Animaduertere tamen de- 
bemus, ne iuris gentium regulam 
uel lex aliqua uel quod legis uicem 
optinet aliquo casu commutauerit. 


$ 84. Ecce enim ex senatuscon- 
sulto Claudiano poterat ciuis Ro- 
mana quae alieno seruo volente 
domino eius cotit, ipsa ex pactione 
libera permanere, sed seruum pro- 
creare; nam quod inter eam et 
dominus istius serui conuenerit, eo 
senatusconsulto ratum esse iubetur. 
sed postea diuus Hadrianus iniqui- 
tate rei et inelegantia iuris motus 
restituit iuris gentium regulam, ut 
cum ipsa mulier libera permaneat, 
liberum pariat. 


DE PERSONIS. 


[1. $$ 76-87. 


lex Aelia Sentia, the offspring is a 
Latin by birth, because in this hy- 
pothesis the lex Aelia Sentia and 
Junia Norbana confer a capacity of 
civil marriage, and a civil marriage 
always transmits to the offspring 
the status of the father: if the 
Marriage was otherwise contracted, 
they held the offspring acquires by 
Gentile law the status of his mother. 
However, the law on this point is 
now determined by the senatuscon- 
sult passed on the proposition of 
the late Emperor Hadrian, which 
enacts that the son of a Latin and 
a Roman woman is under every 
hypothesis a Roman citizen. 

§ 81. Consistently herewith Ha- 
drian’s senatusconsult provides that 
the offspring of the marriage of a 
Latin freedman with an alien woman 
or of an alien with a Latin freed- 
woman follows the mother’s condi- 
tion. 

§ 82. Consistently herewith the 
offspring of a female slave and a 
freeman is by Gentile law a slave, 
the offspring of a freewoman and 
a slave is free. 

§ 83. We must observe, however, 
whether the law of nations in any 
given instance is overruled by a 
statute or ordinance having the 
authority of a statute. 

$ 84. For instance, the Sc. Clau- 
dianum permitted to a female citi- 
zen of Home having intercourse 
with a slave with his owner's con- 
sent, to continue herself in virtue 
of the convention free, while she 
gave birth to a slave, her agree- 
ment to that effect with the owner 
being made valid by the senatus- 
consult. Subsequently, however, the 
late Emperor Hadrian was induced 
by the injustice and anomaly of 
the ordinance to re-establish the 
rule of Gentile law, that as the 
mother continues free the offspring 
follows her status. 


1. $$. 76-87. | 





$ 85. (Jtem e lege ) ex ane 
cilla et libero poterant beri nasci ; 
uam ea lege cauetur, ut si quis cum 
aliena ancilla quam credebat libe- 
ram esse coierit, siquidem masculi 
nascantur, liberi sint, si uero femi- 
nae, ad eum pertineant, cuius mater 
ancilla fuerit. sed et in hac specie 
diuus Vespasianus inelegantia iuris 
motus restituit iuris pentium regu- 
lam, ut omni modo, etiamsi masculi 
nascantur, serui sint eius cuius et 
mater fuerit. 


$ 86. Sed illa pars eiusdem legis 
salwa est, ut ex libera et seruo 
alieno quem sciebat seruum esse, 
serui nascautur. itaque apud quos 
talis lex non est, qui nascitur, iure 
gentium matris condicionem sequi- 
tur et ob id liber est. 


5$ 87. Quibus autem casibus ma- 
tris et non patris condicionem se- 
quitur qui nascitur, isdem casibus 
in potestate eum patris, etiamsi is 
ciuis Romanus sit, non esse plus 
quam manifestum est.. et ideo 
superius rettulimus quibusdam ca- 
sibus per errorem non iusto con- 
tracto matrimonio senatum interue- 
nireet emendareuitium matrimonii, 
eoque modo plerumque efficere, ut 
in potestatem petris filius redi- 


DE STATU LIBERORUM. 


77 
§ 85. By a law (the name of 


- which is unknown) the offspring 


of a female slave by a freeman 
might be free, for that law pro- 
vided that the offspring of a free- - 
man by another person’s female 
slave whom he believed to be free 
shall be free if they are male, but 
shall belong to their mother's pro. 
prietor if they are female: but here 
too the late Emperor Vespasian was 
moved by the anomalous character of 
the rule to re-establish the canon of 
Gentile law, and declared that the 
offspring in every case, whether male 
or female, should be slaves and the 
property of their mother's owner. 

$ 86. But another clause of that 
law continues in force, providing 
that the offspring of & freewoman 
by another person's slave whom she 
knows to be a slave are born slaves, 
though where this law is not estab- 
lished the offspring by Gentile law 
follow the mother's condition and 
are free. 

$ 87. When the child follows the 
mother's condition instead of the 
father's, it is obvious that he is not 
subject to the power of the father, 
even though the father is a Roman 
citizen: but in some cases, as I 
mentioned above ($ 67), when a 
mistake was tbe occasion of & non- 
civil marriage being contracted, the 
senate interferes and purges the de- 
fect of the marriage and this gene- 
rally has the effect of subjecting 
the son to the power of the father. 


The rules relating to the status of the offspring of parents of 
unequal status are at first sight chaotic and bewildering, but they 


are reducible to a few canons. 


The most general canon is the rule 


of Gentile law, that children follow the condition of the mother, 


This is subject to two exceptions. 


1. Children born in civil wedlock follow the condition of the 


father, Cf. §§ 88, 89, 94. 


2. Children born in gentile (lawful) wedlock of a Roman mother 





78 DE PERSONIS. [r. $$ 88-92, 


and alien father follow the condition of the father: this was a 
special enactment of the lex Minicia. 

. $ 78. These rules are stated in the following passages: Lex 
naturae haec est ut qui nascitur sine legitimo matrimonio matrem 
sequatur nisi lex specialis aliud inducat, Dig.1,5. ‘By the law of 
nature children not born in civil wedlock follow the status of the 
mother, in the absence of a special statute to the contrary Con- 
nubio interveniente liberi semper patrem sequuntur: non inter- 
veniente connubio, matris conditioni accedunt, excepto eo qui ex 
peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia 
(in MS. Mensia) ex alterutro peregrino natum deterioris parentis 
conditionem sequi jubet, Ulpian, 5, 8. ‘In civil wedlock the 
children have the status of the father, in the absence of civil 
wedlock of the mother; except that the children of an alien father 
and Roman mother are aliens, as the lex Minicia makes the children 
aliens when either parent is an alien. 

The Sc. Claudianum introduced some special enactments respect- 
ing the intercourse’ of freewomen with slaves, which, however, were 
subsequently abolished. 

a. If a freewoman had intercourse with a slave with the consent 
of his proprietor she retained her freedom, though degraded to the 
class of a freed woman, but her issue was the slave of the proprietor. 
The slavery of the issue was abolished by Hadrian, § 84. 

b. If a freewoman persisted in intercourse with the slave of another 
person against the will and in spite of the prohibition of the pro- 
prietor, after three denunciations on his part she was awarded to him 
by the magistrate as a slave, and her issue, whether born before or 
after the adjudication, became slaves of the same person, who also 
acquired her estate by a species of universal succession. Cf. $$ 91, 
160. "This terroristie law, which, from the minuteness with which 
the details are developed (Paulus, 2, 21), appears to have been often 
applied, was not abrogated till the time of Justinian, Inst. 8, 12, 1. 

c. If a freeman had intercourse with a slave whom he supposed 
to be free, her male children were born into freedom. This relief 
of error was abolished by Vespasian as anomalous (inelegans), § 86. 

. $80. There was not much plausibility in the view that a mar- 
riage under the lex Aelia Sentia, merely because it was statutory 
(regulated by statute), was therefore a civil marriage; and we may 
regard the senatusconsult of Hadrian, which denied ite civil character, 
as purely declaratory. 


1.8 88-92.] 


§ 88. Sed si ancilla ex ciue Ro- 
mano conceperit, deinde manumissa 
eius Romana facta sit, et tunc 
pariat, licet. ciuis Romanus sit 
qui nascitur, sicut pater eius, non 
tamen in potestate patris est, quia 
neque ex iusto coitu conceptus est 
neque ex ullo senatusconsulto talis 
coitus quasi iustus constituitur. 


$ 89. Quod autem placuit, si an- 
cilla ex ciue Romano conceperit, 
deinde manumissa pepererit, qui na- 
sciturliberum nasci, naturaliratione 
fit; nam biqui illegitime concipiun- 
tur, statum sumunt ex eo tempore 
quo nascuntur ; itaque si ex libera 
nascuntur, liberi fiunt, nec interest 
ex quo mater eos conceperit, cum 
ancilla fuerit; at hi qui legitime 
concipiuntur, ex conceptionis tem- 
pore statum sumunt. 


$ 90. itaque si cut mulieri ciui 
Romanae praegnati aqua et igni 
interdictum fuerit, eoque modo pere- 
grina facta tunc pariat, conplures 
distinguunt et putant, siquidem ex 
iustis nuptiis conceperit, ciuem Ro- 
manum ex ea nasci, si uero uulgo 
conceperit, peregrinum ex ea nasci. 


$ 91. Item si qua mulier ciuis 
Romana s exsenatusconsulto 
Claudiano ancilla facta sit ob id quod 
alieno seruo inuito et denuntiante 
domino eius (coterit), conplures dis- 
ünguunt et existimant, siquidem ex 
justis nuptiis concepéíus sit, ciuem 
Romanum ex ea nasci, si uero uulgo 
conceptus sit, seruum nasci eius 
euius mater facta esset ancilla. 


§ 92. Peregrina quoque si uulgo 
eonceperit, deinde ciuis Romana 


(fiat) et tune pariat, ciuem. Ro- 
manum perit; si uero ex peregrino 
secundum leges moresque peregri- 


DE STATU LIBERORUM. 


79 


§ 88. If a female slave conceive 
by a Roman citizen and become by 
manumission a citizen of Rome be- 
fore giving birth to a son, her son, 
though a citizen of Rome like his 
father, is not in his father’s power, 
because he was not begotten in civil 
wedlock, and there is no senatus- 
consult which cures the defect of 
the intercourse in which he was 
begotten. 

§ 89. The decision that when a 
female slave conceives by a Roman 
citizen and is manumitted before 
childbirth, her offspring is born 
free, is a rule of natural law; for in 
illegitimate or non-civil conception 
the status of the offspring depends 
on the moment of birth, and the 
mother’s freedom at the moment of 
birth makes the offspring free, and 
the status of thefather isimmaterial: 
but in legitimate or civil conception 
the status of the child is determined 
by the time of conception. 

§ 90. Accordingly, if a female 
citizen of Rome being pregnant is 
interdicted from fire and water, and 
becoming thus an alien gives birth 
to a child, many jurists distinguish 
and hold that her offspring is a 
Roman citizen if begotten in civil 
wedlock, but if in promiscuous inter- 
course, an alien. 

§ 91. So if a female citizen of 
Rome being pregnant is reduced to 
slavery under the Sc. Claudianum 
for having intercourse with a slave 
against the prohibition of his owner, 
many jurists make a distinction and 
hold that her offspring, if conceived 
in civil wedlock is a citizen of Rome, 
if conceived in illicit intercourse is 
a slave of the person who becomes 
proprietor of the mother. 

§ 92. Also if an alien woman 
conceive in illicit intercourse and 
afterwards becomes a Roman citizen 
and gives birth to a child, the child 
is 8 Roman citizen; but if she con- 





80 


norum conceperit, ita uidetur ex 
senatusconsulto quod auctore diuo 
Hadriano factum est, ciuem Ro- 
manum parere, si et patri eius 
ciuitas Romana donetur, 


DE PERSONIS. 


[1 $$ 88-92, 


ceived by an alien, to whom she was 
married in accordance with alien 
laws and customs, it seems that 
upon Hadrian's senatusconsult her 
offspring is only born a Roman 


citizen, if the father also has ac- 
quired the Roman franchise. 


Supposing the status of a parent changes during the period of 
gestation (if, for instance, the mother is a slave at the time of 
conception and free at the time of birth), what effect has this on 
the status of the issue? The following rule was adopted: in cases 
where the child follows the status of the father, that is, when it is 
begotten in civil marriage, the status of the father at the tame of 
conception determines the status of the child; where the child 
follows the status of the mother, that is; when it is begotten in 
gentile marriage or in promiscuous intercourse, the status of the child 
is determined by the status of the mother at the moment of birth. 
Ulpian, 5, 10. ‘Children born in civil wedlock have their status 
fixed at the time of conception; children born out of civil wedlock 
have their status fixed at the time of delivery.’ That is to say, the 
legal position of the issue is made to follow the analogy of its 
physical condition. The physical influence of the father terminates 
with conception; his subsequent health, life, or death, does not 
affect the physical state of the child; but the child is affected by 
every change in the physical condition of the mother, her health, 
life, or death, up to the moment of birth. In imitation of this 
analogy, the status of the child, when it depended on the status of 
the father, was not affected by any change in that status subsequent 
to the period of conception; but when it depended on the status of 
the mother it varied with every change in that status up to the 
moment of birth. By the time of Gaius, though the change is not 
mentioned in the text, this rule was modified in favour of liberty, 
and it was established that if the mother was free either at the date 
of conception or at the date of birth or at any intermediate period, 
the issue was born free. Si libera conceperit et ancilla facta peperit, 
liberum parit, id enim favor libertatis exposcit. Si ancilla conce- 
perit et medio tempore manumissa sit, rursus facta ancilla peperit, 
liberum parit, media enim tempora libertati prodesse, non nocere 
etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr. 

§ 88. The issue of a mother who was a slave at the date of con- _ 
ception but is & citizen at the date of birth, though it is born a 


1 § 93-96. ] DE STATU LIBERORUM. 81 


Roman citizen, is not subject to patria potestas, becatse it does not 
satisfy the definition in $55, liberi quos justis nuptiis procreavimus, 
‘a child begotten in civil wedlock.’ 

_ § 90. Aquae et ignis interdictio was originally a permission to 
avoid punishment under the penal code by voluntary exile. . Subse- 
quently it was employed as a punishment, and under the emperors 
assumed the form of deportatio in insulam. It was attended with 
confiscation of goods, and involved loss of civitas but not of libertas, 
$$ 128, 161. 

§ 92. The offspring of a wedded mother who was an alien at the 
date of conception and is a citizen at the date of birth, according to 
the general rule of gentile law, should be born a Roman citizen ; but 
this would contravene the above-mentioned lex Minicia, which en- 
acted that the issue of a marriage is an alien whenever either parent 


is an alien, $ 78. 


$ 93. Si peregrinus sibi liberis- 
que suis ciuitatem Romanam peti- 
erit, non aliter filii in potestate eius 
fient, quam si imperator eos in 
potestatem redegerit ; quod ita de- 
mum 18 facit, si causa cognita aesti- 
mauerit hoc filis expedire.  dili- 
gentius autem exactiusque causam 
cognoscit de inpuberibus absenti- 
pnegne i ; et haec ita edicto diui 

Hadriani significantur. 


§ 94. Item si quis cum uxore 
praegnate ciuitate Romana donatus 
sit, quamuis si qui nascitur, ut 
supra diximus, ciuis Romanus sit, 
tamen in potestate patris non fit ; 
idque subscriptione diui Hadriani 
significatur; qua de causa qui in- 
tellegit uxorem suam esse praegna- 
tem, dum ciuitatem sibi et uxori 
ab imperatore petit, simul ab eodem 
petere debet, ut eum qui natus erit, 
in potestate sua habeat. 


$ 95. Alia causa est eorum qui 
letü iure cum liberis suis ad 
eiuitatem Homanam perueniunt; 


G 


$ 93. If an alien has obtained 
by petition for himself and his 
children & grant of Roman citi- 
zenship, the children do not fall 
under the power of the father 
except by express ordinance of 
the emperor, which he only makes 
if, on hearing the facts of the 
case, he deems it expiedient for 
the interest of the children, and 
only after & careful and minute 
inquiry if they are infants and 
absent, as an edict of the Emperor 
Hadrian intimates, 

§ 94. Also if an alien and his 
pregnant wife receive a grant of 
Roman citizenship, the child, though 
a Roman citizen, as above men- 
tioned, is not born in the power of 
his father according to a rescript of 
the late Emperor Hadrian; where- 
fore, if he knows his wife to be 
pregnant, an alien who petitions 
the emperor for the Roman fran- 
chise for himself and his wife ought 
at the same time to petition that his 
son may be subjected to his power. 

$ 95. The rule is different for 
those who with their children are 
made citizens of Rome by right of 


82 


nam horum in potestate fiunt 
liberi, quod ius quisbusdam pere- 
grinis ciuitatibus datum est uel a 
populo Romano uel a senatu uel a 
Cae|sare.— 

§ 96. aut maius est Latijum 
aut minus: maius est Latium, cum 
et hz qui decuriones leguntur et ei 
qui honorem aliquem aut magis- 
tratum gerunt, ciuitatem Romanam 
consecuntur; minus Latium est, cum 
hi tantum qui magistratum uel hon- 
orem gerunt, ad ciuitatem Romanam 
perueniunt ; idque conpluribus epis- 





DE PERSONIS, 


[1. $$ 93-96, 


Latinity, for their children fall 
under their power; this right 
has been conceded to certain alien 
states either by the Roman people, 
or by the senate or by the emperor. 

$ 96. The right of Latinity is 
either greater or lesser. Greater 
Latinity is the right whereby those 
who are chosen decuriones or hold 
some high office or magistracy ac- 
quire Roman citizenghip: lesser 
Latinity is when only those who 
are magistrates or hold high office 
acquire the Roman franchise, a 
distinction intimated by several 


tulis principum significatur, 
imperial rescripts, 


The grant of civitas was either made to communities or to 
individuals. It was a lucrative source of revenue to the em- 
perors, The fees to be paid were not small, Acts of the Apostles, 
22, 28, and the new-made civis was regarded as a manumitted slave 
of the emperor, and was expected to remember the emperor in his 
will. The philosophic emperor, Marcus Aurelius, under whom 
Gaius flourished, granted the Roman franchise to all who were 
ready to pay the fees, data cunctis promiscue civitas Romana, 
Aurelius Victor, 16. Antoninus Caracalla, a.p. 211—217, after 
raising from one-twentieth to one-tenth the tax on manumissions 
and the testamentary succession and legacy duty, which was only 
levied on Roman citizens, exhausted for a time this source of revenue 
by conferring at a stroke the Roman franchise on every free subject 
of the empire; In orbe Romano qui sunt, ex constitutione impera- 
toris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was 
not a general manumission of slaves nor an abolition of the status of 
Latin or alien, but a grant of the franchise to all existing Latins 
and aliens, imposing in effect a capitation tax on the individuals, 
and leaving those orders to be again replenished by subsequent 
manumissions of Latini and dediticii, The value of the privileges 
of civis Romanus was gradually declining. The political portions 
of civitas had been extinguished by the establishment of the empire, 
and Rome was destined at last to undergo the fate she had inflicted 
on so many other cities. She wag sacked by Alaric, king of the 
Goths, A.D. 410. She was entered by Genseric, king of the Van- 
dals, and, after a sack of fourteen days, left a heap of ruins, a.p, 


x. 8$ 97-107.] DE ADOPTIONIBUS. 83 


455. The splendour of the title of civis Romanus was sadly dimmed 
before Justinian made it acquirable by every form of manumission. 

§ 94. Subscriptio was an imperial rescript written under the 
petition to which it was an answer: a rescript written on a separate 
document was called epistola. The latter was addressed to publie 
functionaries, the former to private individuals, and by its con- 
nection with the petition enabled a tribunal to which it was 
submitted to investigate the truth of the allegations on which it 
was founded. Cf. § 5 Comm. 

The grant of patria potestas by the sovereign power to the new- 
made citizen may be assimilated to the legislative grant of patria 
potestas in adrogatio. Its different effects may be compared with 
the incidents of Naturalization and Denization in English law. 
Naturalization by act of parliament is retrospective, and puts an 
alien in exactly the same state as if he had been born in the kings 
ligeance, and his son born before the naturalization may inherit: 
whereas the issue of a Denizen (an alien born who has obtained ex 
donatione regis letters patent to make him an English subject) 
eannot mherit to him, but his issue born after may. Blackstone. 

$ 96. Before the recension of the text by Studemund Gaius was 
supposed to have defined greater Latinity in this section as the right 
whereby the magistrates of certain towns acquire the Roman fran- 
ehise along with their wives and children, and lesser Latinity as the 
right whereby the magistrates themselves acquire the Roman fran- 
chise, but not their wives and children. 

The name of a senate in a municipality was ordo decurionum 
or simply ordo or curia, ite members being decuriones or curiales. 
The office of decurio became very burdensome; and in order to 
make it more acceptable, privileges were from time to time attached 
toit. (Smith's Dict. of Antiquities, s.v, Dig. 60, 2 de decurionibus.) 


DE ADOPTIONIBUS. 


$ 97. |Non solum tamen naturales $ 97. Not only natural children 

| secundum ea quae | diximus, are subject, as mentioned, to pa- 

in potestate nostra sunt, uerum et ternal power, but also adoptive 
hi quos adoptamus, children. 





$ 98. Adoptio autem duobus 
modis fit, aut populi auctoritate, 
aut imperio magistratus ueluti 
praetoris, 


$ 98. Adoption is of two forms, 
adoption by permission of the sove- 
reign and adoption by the judicial 
authority of & magistrate, for in- 
stance, by the judicial authority of 
the praetor. 


G2 


84 


§ 99. Populi auctoritate adopta- 
mus eos qui sui iuris sunt; quae 
species adoptionis dicitur adrogatio, 
quia et is qui adoptat rogatur, id 
est interrogatur, an uelit eum quem 
adoptaturus sit, iustum sibi filium 
esse; et is qui adoptatur rogatur, 
an id fieri patiatur; et populus ro- 
gatur, an 1d fieri iubeat. imperio 
magistratus adoptamus eos qui in 
potestate parentum sunt, siue pri- 
mum gradum liberorum optineant, 
qualis est filius et filia, siue in- 
feriorem, qualis est nepos neptis, 
pronepos proneptis. 


$ 100. Et quidem ill& adoptio 
quae per populum fit, nusquam nisi 
Romae fit; at haec etiam in pro- 
uinclis apud praesides earum fieri 
solet. 


$ 101. Item per populum feminae 
non adoptantur, nam id magis pla- 
cuit; apud praetorem uero uel in 
prouinciis apud proconsulem lega- 
tumue etiam feminae solent adop- 
tari. 


$ 102. Item inpuberem apud po- 
pulum adoptari aliquando, prohibi- 
tum est, aliquando permissum. est ; 
(—) nunc ex epistula optimi im- 
peratoris Antonini quam scripsit 
pontificibus, si iusta causa adop- 
tionis esse uidebitur, cum quibus- 
dam condicionibus permissum est. 
apud praetorem uero, et in pro- 
uincis apud proconsulem  lega- 
tumue, cuiuscumque aetatis (per- 
sonas) adoptare possumus. 


.. DE PERSONIS. 


[1. $$ 97-107. 


$ 99. Permission of the sovereign 
people is required for the adoption 
of an independent person, and this 
form is called adrogation, because 
the adopter is interrogated whether 
he wishes to have the person adopt- 
ed for his lawful son, the person 
adopted is interrogated whether he 
thereto consents, and the legislature 
is interrogated whether such is its 
command. The judicial authority 
of a magistrate gives validity to the 
adoption of a person subject to the 
power of an ascendent, whether a 
descendent in the first degree, as a 
Son or daughter, or in & remoter 
degree, as & grandson or grand- 
daughter, great-grandson or great- 
granddaughter. 

$ 100. Adoption by the sanction 
of the legislature can only be so- 
lemnized at Rome, the other pro- 
cess can be performed in the pro- 
vinces in the court of the pre- 
sident. 

$ 101. Adoption by legislative 
sanction is inapplicable to females, 
88 has finally been ruled; but fe- 
males may be adopted by the ether 
mode of adoption, at Rome in the 
court of the praetor, in provinces 
of the people in the court of 
the proconsul in provinces of 
the emperor in the court of the 
legate. 

$ 102. The legislative adoption 
of a child below the age of puberty 
was at one time prohibited, at an- 
other permitted; at the present 
day, by the epistle of the Emperor 
Antoninus addressed to the ponti- 
fices, on evidence of a just cause of 
adoption, it is permitted, subject to 
certain conditions. In the court of 
the praetor at Rome, in the court of 
the proconsul in & province of the 
people, and in the court of the 
legate in a province of the emperor, 
& person of any age may be 
adopted. 


i. $$ 97-107.] 


$ 103. Illud utriusque adoptionis 
commune est, quod et hi qui gene- 
rare non possunt, quales sunt spa- 
dones, adoptare possunt. 

$ 104. feminae uero nullo modo 
adoptare possunt, quia ne quidem 
naturales liberos in potestate ha- 
bent. 

$ 105. Item si quis per populum 
siue apud praetorem uel apud prae- 
sidem prouinciae adoptauerit, potest 
eundem alii in adoptionem dare. 


$ 106. Sed et illa quaestio, an 
minor natu maiorem natu adoptare 
possit, utriusque adoptionis com- 
munis est. 

$ 107. illud proprium est eius 
adoptionis quae per populum fit, 
quod is qui liberos in potestate ha- 
bet, si se adrogandum dederit, non 
solum ipse potestati adrogatoris 
subicitur, sed etiam liberi eius in 
eiusdem fiunt potestate (amquam 
nepotes. 


DE ADOPTIONIBUS, 


B5 


$ 103. Both forms of adoption 
agree in this point, that persons 
incapable of procreation by natural 
impotence are permitted to adopt. 

$ 104. Women cannot adopt by 
either form of adoption, for even 
their natural children are not sub- 
ject to their power. 

$ 105. He who has adopted a 
person either by the sanction of the 
legislature or by the judicial autho- 
rity of the praetor or of the pre- 
sident of a province, can transfer his 
adoptive son to another adoptive 
father. 

$ 106. Whether & younger per- 
son can adopt an older is a disputed 
point in both forms of adoption. 


$ 107. It is peculiar to adoption 
by the sanction of the legislature, 
that children in the power of the 
person adrogated, as well as their 
father, fall under the power of the 
adrogator, assuming the position of 
grandchildren. 


Adrogation, or the adoption of an independent person (pater- 


familias), reducing him to a dependent status (filiusfamilias), was 
a legislative act of the Comitia Curiata; but though, as repre- 
senting the people, this assembly was legally omnipotent, it was 
unconstitutional to deprive a person either of the franchise or of 
domestic independence without his own consent. We learn from 
Cicero the formula by which this assent was ascertained. De Domo, 
29. ‘As it is an immemorial rule of law that no citizen of Rome 
shall be deprived of independence or the franchise against his will, 
as you have had occasion of learning by your own experience, for 
I suppose that, illegal as your adrogation was in all points, you at 
least were asked whether you consented to become subject to the 
adrogator's power of life and death as if you were his son ;—if you 
had opposed or been silent, and the thirty Curiae had nevertheless 
paseed the law, tell me, would their enactment have had any bind- 
ing force?" The form in which the law was proposed to the 
legislative assembly is given by Gellius, 5, 19. * Adrogation is 
the subjection of an independent person with his own consent to the 








86 DE PERSONIS. [1. $$ 97-107. 


power of a superior, and is not transacted in the dark or without 
investigation. The Comitia Curiata, at which the College of Pon- 
tiffs is present, are convened, and examine whether the age of the 
adrogator does not rather qualify him for the natural procreation of 
children, and whether the estate of the adrogatus is not the object 
of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, 
the high pontiff, has to be taken by the adrogator. . . . Adroga- 
tion, the name given to this transit into a strange family, is 
derived from the interrogation of the legislative body, which is in 
the following form : * May it please you to will and command that 
L. Valerius shall be as completely by law and statute the son of 
L. Titius, as if he were born of L. Titius and his wife, and that 
L. Titius shall have power of life and death over L. Valerius as 
a father has over his son. Do you will and command as I have 
said, Quirites?’ "Those who voted in affirmation of the measure 
proposed said (at least in other similar assemblies): Utirogas; those 
who voted against it said: Antiquo. Women were originally in- 
capable of being adrogated, because they were incapable of appear- 
ing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum 
communio est, Gellius, ibid. ; but this incapacity vanished as soon 
as the lex Curiata, as form of adrogation, was superseded by 
imperial rescript (principale reseriptum), Dig. 1, 7, 21. Women, 
being incapable of exercising parental power, could not, properly 
speaking, adrogate; but they were permitted by quasi adrogation 
to establish the same legal relation as existed between a mother and 
her natural children, Cod. 8,48, 5. Inst. 1,11, 10. An adrogator 
was usually required to be sixty years old, Dig. 1, 7, 15, and to bé 
eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4 
Originally a youth must have attamed the age of puberty before 
he could be adrogated, $ 102: Sed adrogari non potest nisi jam 
vesticeps . . . . quoniam tutoribus in pupillos tantam esse auctori- 
tatem potestatemque fas non est, ut caput liberum fidei suae com- 
missum alienae ditioni subiciant, Gellius, ibid. ‘A youth cannot be 
adrogated before he has assumed the toga virilis, because a guardi 

has no authority or power to subject an independent person, with 
whose charge he is entrusted, to the domination of a stranger. Thé 
purple-edged praetexta was generally laid aside by boys along with 
the bulla aurea which they wore round their neck, on the first 
Liberalia, the 17th March, Ovid, Fasti, 8, 771, after the completion 
of their fourteenth year. Females did not lay aside the praetexta till 


1. $$ 108-115 5.] . DE MANU, 


their marriage. Antoninus Pius permitted the adrogation of youths 
below the age of puberty (impubes, investis) under certain con- 
ditions; e.g. the adrogator entered into a stipulation, originally 
with a public slave, in later times with a public notary (tabularius), 
in the event of the death of adrogatus before the age of puberty, to 
restore his estate to his natural heirs, and, in the event of emanci- 
pation, to adrogatus himself: and adrogatus became entitled to a 
fourth part of the estate of adrogator (called quarta Antonini), of 
which he could not be deprived by disinherison or by unmerited 
emancipation. In the time of Justinian the adrogator only acquired 
in any case an usufruct or life estate in the property of adrogatus, 
which reverted to adrogatus after the death of adrogator; thatis to 
say, the property of adrogatus was transformed by adrogation into 
peculium adventicium. Cf. 8, 84 Comm. 

The form of adoption is explained below, $ 134, under the head of 
dissolution of patria potestas, for as patria potestas is vested by 
adoption in the adoptive father, so it is divested from the natural 
father. 

The effect of adoption was much reduced by a constitution of 
Justmian. If the adoption was by an ascendent, maternal or 
paternal, it retained its old character: but if it was by a stranger 
it neither created nor extinguished patria potestas; it did not 
transfer the adopted son from his old family into a new family, and 
therefore it neither destroyed nor created any tie of agnation: its 
only effect was to give to the adoptive son, in the event of intestacy, 
a claim against the estate of the intestate adoptive father; Cod. 8, 
48,10. Inst. 1, 11, 2. 8, 1, 14, 


87 


DE MANU. 


$108. | Nune de his personis vide-— $ 108. Let us next proceed to 


consider what 


amus quae in manu nostra sunt. 
quod | et ipsum ius proprium ciuium 
Romanorum est. 

$109. Sed in potestate quidem 
et masculi et feminae esse solent ; 
in manum autem feminse tantum 
conuenient. 

$ 110. Olim itaque éribus modis 
in manum conueniebant, usu, farreo, 
coemptione, 


persons are subject 
to the Hand, another right only 
vested in citizens of Rome. 

$ 109. Power is a right over 
males as well as females: Hand 
relates exclusively to females. 


$ 110. In former days there were 
three modes of becoming subject to 
Hand, possession, confarreation, co- 
emption, 


88 


2° § 111. Usu in manum conueni- 
ebat quae anno continuo nupta per- 
seuera&bat; quia enim ueluti annua 
possessione usucapiebatur, in fami- 
liam uiri transibat filiaeque locum 
optinebat. itaque lege Xii tabu- 
larum cautum est, ut si qua nollet 
eo modo in manum mariti conuenire, 
ea quotannis trinoctio abesset a£que 
eo modo (usum) cuiusque anni in- 
terrumperet. sed hoc totum ius 
partim legibus sublatum est, partim 
ipsa desuetudine oblitteratum est. 


$ 112. Farreo in manum conue- 
niunt per quoddam genus sacrificii 
quod Ioui Farreo fit; in quo farreus 
panis adhibetur, unde etiam confar- 
reatio dicitur; conplura praeterea 
huius iuris ordinandi gratia cum 
certis et sollemnibus uerbis, prae- 
sentibus decem testibus, aguntur et 
fiunt. quod ius etiam nostris tem- 
poribus in usu est; nam flamines 
maiores, id est Diales Martiales 
Quirinales, item reges sacrorum, 
nisi ex farreatis nati non leguntur; 
ac ne ipsi quidem sine confarrea- 
tione sacerdotium habere possunt. 


$113. Coemptione uero in manum 
conueniunt per mancipationem, id 
est per quandam imaginariam uen- 
ditionem ; nam adhibitis non minus 
quam V testibus ciuibus Romanis 
puberibus, item libripende, emit is 
mulierem, cuius in manum conuenit, 


$ 114. Potest autem coemptionem 
facere mulier non solum cum marito 
suo, sed etiam cum extraneo; scili- 


DE PERSONIS. 


[r. $$ 108-115 & 


$ 111. Possession invested the 
husband with right of Hand after a 
whole year of unbroken cohabita- 
tion. Such annual possession ope- 
rated & kind of usucspion, and 
brought the wife into the family 
of the husband, where it gave her 
the status of a daughter. Accord- 
ingly, the law of the Twelve Tables 
provided that a wife who wished to 
avoid subjection to the Hand of the 
husband should annually absent her- 
self three nights from his roof to 
bar the annual usucapion: but this 
proceeding is pertly abolished by 
statute, partly obliterated by mere 
disuse. 

§ 112. Confarreation, another 
mode in which subjection to Hand 
originates, is a sacrifice offered to 
Jupiter Farreus, in which they use 
a cake of spelt, whence the cere- 
mony derives its name, and various 
other acts and things are done and 
made in the solemnization of this 
disposition with a traditional form 
of words, in the presence of ten 
witnesses: and this ceremony is 
still in use, for the functions of the 
greater flamens, that is, the famens 
of Jove, of Mars, of Quirinus, and 
the duties of the ritual king, can 
only be performed by persons born 
in marriage solemnized by confar- 
reation. Nor can such persons 
themselves hold a priestly office if 
they are not married by confarre- 
ation. 

§ 113. In coemption the right of 
Hand over & woman is vested in a 
person to whom she is conveyed by 
à mancipation or imaginary sale: 
for the man purchases the woman 
who comes into his power in the 
presence of at least five witnesses, 
citizens of Rome above the age of 
puberty, besides & balance holder. 

$ 114. By coemption a woman 
may convey herself either to a hus- 
band or to a stranger, that is to 


x. $$ 108-115 5.] 


cet aut matrimonii causa facta co- 
emptio dicitur, aut fiduciae; quae 
enim marito suo facit coemptionem, 
(ut) apud eum filiae loco sit, dici- 
tur matrimonii causa fecisse co- 
emptionem ; quae uero alterius rei 
causa facit coemptionem aut cum 
uiro suo aut cum extraneo, ueluti 
tutelae euitandae causa, dicitur 
fiduciae causa fecisse coemptionem. 

$ 115. quod est tale: siqua uelit 
quos habet tutores deponere et 
alium nancisci, illis auctoribus co- 
emptionem facit; deinde a coemp- 
tionatore remancipata ei cui ipsa 
ueht, et ab eo uindicta manumissa 
incipit eum habere tuforem, (a) 
quo manumissa est; qui tutor 
fiduciarius dicitwr, sicut inferius 


apparebit. 


$ 115 a. Olim etiam testamenti 
faciendi gratia fiduciaréa fiebat co- 
emptio; tunc enim non aliter 
feminae testamenti faciendi ius ha- 
bebant, exceptis quibusdam personis, 
quam si coemptionem fecissent re- 
mancipataeque et manumissae fuis- 
sent ; sed hanc necessitatem coemp- 
tionis faciendae ex auctoritate diui 
Hadriani senatus remisit. 


$115 b. Ifemina—— —fi|- 
duciae causa cum sro suo fecertt 
coempé&ionem, nibilo minus filiae loco 
incipit esse ; nam si omnino quali- 
bet ex causa uxor in manu uiri sit, 
placuit eam filiae iura nancisci. 





DE MANU. 


89 


say there are two forms of coemp- 
tion, matrimonial and fiduciary. A 
coemption with a husband in order 
to acquire the status of daughter in 
his house is a matrimonial coemp- 
tion : a coemption for another pur- 
pose, whether with a husband or 
with a stranger, for liberation, for 
instance, from guardianship, is a 
fiduciary coemption. 

§ 115. This is accomplished by 
the following process: the woman 
who desires to set aside her present 
guardians and substitute another 
makes a coemption of herself to 
some one with their sanction: 
thereupon the party to this coemp- 
tion remancipates her to the person 
intended to be substituted as guar- 
dian, and this person manumits her 
by fictitious vindication, and in 
virtue-of this manumission becomes 
her guardian, being called a fidu- 
clary guardian, as will hereafter be 
explained. 

$ 115 a. In former times testa- 
mentary capacity was acquired by 
fiduciary coemption, for no woman 
was competent to dispose of her 
property by will, with the excep- 
tion of certain persons, unless she 
had made a coemption, been reman- 
cipated and then manumitted: but 
this necessity of coemption was 
abolished by a senatusconsult made 
on the motion of Hadrian. 

$ 115 6. Even if à woman makes 
only a fiduciary coemption with her 
husband, she acquires the status of 
his daughter, for it is held that 
from whatever cause @ woman is in 
the hand of her husband, she ac- 
quires the position of his daughter. 


Marital power (manus) was entirely assimilated to patria potestas. 
By manus the husband had power of life and death over the wife, 
Livy, 89, 18; Tac. Ann. 18, 82; and all the property of the wife, 
even more absolutely than by the common law of English jurispru- 
dence, vested in the husband, 2 $ 98. 


90 DE PERSONIS. [1.85 108-115 5; 


Manus was perhaps originally an essential accompaniment of civil 
wedlock, and the patriarchs of the Roman nation could probably 
not conceive of the conjugal union as disjoined from manus. Yet 
at a very early period of Roman history these elements of marriage 
were recognized as separable, and in later times they were almost 
universally dissociated, and wedlock was unaccompanied by manus. 
In a marriage celebrated without confarreation and without coemp- 
tion, before the expiration of the first year of cohabitation, there 
was civil wedlock without manus, and the Twelve Tables provided 
a method (trinoctio abesse) by which this state could be indefinitely 
prolonged : a filiusfamilias was capable of civil wedlock, but had no 
manus, for marital power, like every other civil right, passed out of 
the dependent husband to vest in the father; and as soon as gentile 
marriages were recognised by the legislator the Romans were still 
more familiarized with the spectacle of lawful matrimony without 
manus. As the ages advanced the wife acquired more and more 
independence; manus was almost obsolete in the time of Gaius, and 
it has quite vanished from the legislation of Justinian. 

Confarreation was a form of marriage which made the issue 
eligible for certain high sacerdotal functions, and may therefore be 
regarded as characteristic of the patrician caste. Originally it prob- 
ably produced marital power in its full extent; but when Augustus, 
B.C. 10, after a vacancy of seventy-five years, renewed the priesthood 
of Jove (flaminium diale) he limited by statute the legal effect of 
confarreation in that particular instance, § 186 ; and Tiberius, A.D. 
28, extended the limitation to all future cases of confarreation. 
Henceforth it only operated a change of family in respect of sacred 
rites (sacra): the woman ceased to have the domestic gods and 
domestic worship of her father, and took in exchange the domestic 
gods and domestic worship of her husband. But in secular matters 
her family was unchanged: she remained, if filiafamilias, subject to 
patria potestas, and did not become quasi filiafamilias in the house- 
hold of her husband: her old ties of agnation in her father’s family 
were not snapped, and no new ties of agnation in her husband’s 
family were acquired. Divorce (diffarreatio) was almost impos- 
sible, and this indissolubility of the connection contributed to the 
unpopularity of confarreatio, Moreover, it was a religious cere- 
monial, requiring the presence of the pontifex maximus and flamen 
dialis, and as such it vanished-with vanishing paganism. The ten 
witnesses apparently represented the ten curie of which the tribe 


1. §§ 108-115 5. DE MANU. $i 


was composed, or the ten gentes of which the curia was composed, 
or, if the decimal division continued further, the ten families of 
which the gens was composed. 

The exact nature of Coemption, in consequence of the defective 
state of the Veronese manuscript, must remain a mystery. Coemp- 
tion was a form of mancipation, $ 118, but in virtue of the provision 
of the Twelve Tables, Cum nexum faxit mancipiumque, uti lingua 
nuncupassit, ita jus esto, the nature of every mancipation depended 
on the mancipii lex, the accompanying nuncupation or verbal de- 
claration of its condition, intentions, purposes; as in English cons 
veyancing the nature of a grant is limited and determined by the 
habendum and tenendum of the deed. We are informed that in 
eoemption, the formula was not the same as in other mancipations, 
§ 123, but we are not informed what it was. Even in Cicero's 
time many advocates were ignorant of the legal effect of a coemp- 
tion because they were ignorant of the precise terms of the formula 
in which it was concluded, De Orat. 1, 56. The word itself may 
suggest a conjecture that it was a conveyance of the husband to 
the wife as well as of the wife to the husband ; and this is sup- 
ported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great 
authorities, but who quoted apparently from Ulpian: ‘An ancient 
nuptial form wherein husband and wife made a mutual purchase, to 
bar the inference that the wife became a slave,” Plutarch informs 
us that the wife asserted her equality by the terms, Ubi tu Caius, 
ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am 
mistress,’ Boethius on Cicero Topica, 8, 14, quoting from Ulpian, 
says: ‘The man and woman interrogated one another. He asked 
her if she wished to be mother of his household; she answered, 
Yes. She asked him if he wished to be father of her household ; 
he answered, Yes. And thus the woman passed into the Hand of 
the man, and was called the mother of his household, with the status 
of filiafamilias! According to Cicero, the wife was only called 
materfamilias when subject to Hand: Genus est uxor, ejus duae 
formae, una matrumfamilias, quae in manum convenerant, altera 
earum quae tantummodo uxores habentur, Top. 4. Gellius says the 
same, 18, 6: ‘Competent interpreters of the ancient language say 
that materfamiliae was a title only given to a wife in the hand and 
mancipation of her husband, or of the person who held her husband 
m hand and mancipation, as she was not only a wife, but a member 
of the family of the husband, having acquired therein the status of 





92 DE PERSONIS. [1. $$ 108-115 5. 


self-successor.’? Boethius further limits the title to a wife who has 
become subject to manus by coemption: Quae autem in manum 
per coemptionem convenerant, hae matresfamilias vocabantur, quae 
vero usu et farreatione minime, ibid. However this may have 
been, in one sense the name was a misnomer, for a wife subject to 
hand was not sui juris (materfamilias), but alieni juris (filiafamilias) : 
and that materfamilias denoted a woman sui juris, whether married 
or unmarried, as opposed to a filiafamilias or woman alieni juris, 
appears from Ulpian: Sui juris sunt familiarum suarum principes, 
id est paterfamilias itemque materfamilias, 4, 6. 

If the wife was subject to the power of her father she required 
his consent (auctoritas) before she could make a coemption with her 
husband. If the wife was independent of parental control, she 
required the sanction of her guardians, that is, her agnates. 

Coemption was sometimes employed for other purposes than 
matrimony, and was then called fiduciary coemption. Sometimes 
the intention was to extinguish the obligation of onerous sacred 
' rites attached to the estate of an heiress: Jure consultorum ingenio 
senes ad coemptiones faciendas interimendorum sacrorum causa 
reperti sunt, Cie. Pro Murena, 12. ‘Juristic ingenuity invented 
coemptions with aged men for extinguishing sacred rites Savigny 
gives the following conjectural explanation of the process. The 
obligation to the sacra belonged to the Quiritary ownership of the 
universitas of the woman's estate. This, by the effect of coemption, 
vested in the coemptionator, an old man approaching dissolution 
(senex coemptionalis), with whom a fictitious marriage was con- 
tracted, and who took the estate as universal successor. He 
forthwith dismissed the woman from his manus by remancipation 
and manumission: and then, according to covenant, restored to her 
the estate in portions; that is, released from the ritual obligations, 
which only attached to the universitas. On his death, as Quiritary 
owner of the empty universitas, the obligation to the rites was extin- 
guished: for the succession (hereditas) to the coemptionator did not 
pass to the woman, as she by remancipation had ceased to be 
[such was the hypothesis of Savigny before the discovery of Gaius : 
instructed by Gaius we must rather say, as mere fiduciary coemp- 
tion had not the effect of making her] his filiafamilias and sua 
heres. The phrase senex coemptionalis denotes a slave. From 
which it may be inferred that a slave, useless for any other pur- 
pose, and therefore very cheap, was sometimes bought and manu- 


1.§§ 108-115 8.] . DE MANU. 93 


mitted to serve as coemptionator. In such a case the whole 
transaction would be very inexpensive, if not very decorous, This 
mode of getting rid of sacred rites is compared by Ihering, $ 58, 
with the institution of & slave as successor to bear the infamy of 
bankruptcy instead of a bankrupt testator, 2 § 154. Universal 
succession was an institution which Roman law only admitted in 
certain cases: as operated by contract it was only admitted in case 
of Manus and Adoptio. If universal succession was required for 
the purpose of extinguishing the obligation to sacred rites attaching 
to the estate of an heiress, we might have supposed that Adrogatio 
would have been a less offensive mockery than a fictitious marriage 
(fiduciary coemption); adrogatio, however, was inapplicable, because, 
a8 we have seen, up to a late period of Roman law women were in- 
capable of being adrogated. Moreover, the Pontifices, who had 
a veto on adrogations, were not likely to lend themselves readily to 
the extinction of sacred rites. 

At other time Coemption was employed to enable a woman to 
select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12. ‘There are 
many wise legal provisions that juristic ingenuity has defeated and 
perverted. All women on account of their weakness of judgment 
were placed by our ancestors under a guardian’s control: jurists in- 
vented a kind of guardian subject to female dictation.’ 

The latest employment of Coemption enabled a woman to break 
the ties of agnation and thus acquire testamentary capacity, § 115 a. 
The coemptionator (party to the coemption) in virtue of the manus 
thereby acquired was able, and by a fiducia or trust was bound, to 
sell the woman into bondage as if she were filiafamilias: accord- 
ingly he remancipated her to a third person, who by manumitting 
her in accordance with another fiducia became her patron, and as 
patron, in accordance with the Twelve Tables, §§ 165, 166, her statu- 
tory guardian, and, as having acted under a fiducia, her fiduciary 
guardian, § 115. It may occur to us that as coemptio required 
the sanction of a father or guardian, this process could not be of 
much use in getting rid of a guardian or defeating the claims of 
agnatic guardians to a woman’s intestate succession; but it must 
be remembered that the nearest agnate, who alone was heir and 
guardian, was a variable person, and that a given nearest agnate 
might be not indisposed to allow a woman to acquire the free dis- 
position of her property and to defeat the claims of those who, after 
his death, would be nearest agnates and presumptive heirs. At all 


94 DE PERSONIS. [r.$$ 108-115 5. 


events, however indisposed the guardian might be to such a course, 
& period at last arrived when the auctoritas of the agnatic guardian, 
though still required as a formality, could be extorted, 1f not yielded 
yoluntarily, by appeal to the magistrate, § 190. 

Agnatic guardianship of female wards was abolished by a lex 
Claudia, § 171, and thus the woman would be free from the control 
of an interested guardian in the disposition of her property during 
her lifetime. She would still however be a mere usufructuary or 
tenant for life, being devoid of the power of testation. For when 
wills could be only executed in the comitia, 2 § 101, she would 
be excluded from testation, as well as from adrogation, by ex- 
clusion from the comitia ; and after the introduction of the manci- 
patory will she was still deprived of testamentifactio by her agnates’ 
indefeasible claims to her reversion. Agnation itself, however, 
was defeasible by means of coemptio and remancipatio and the 
consequent capitis minutio; and when the auctoritas of the agnates 
for these proceedings could be extorted, § 190, the woman had 
practically acquired power of testation, although its exercise was 
hampered by a tedious formality, which was not abolished by the 
emperor Claudius when he abolished agnatic guardianship. It was 
not till the senatusconsult of Hadrian that the rupture of the ties 
of agnation by means of coemptio ceased to be necessary to the 
validity of a woman's will, § 115 a; though, as already suggested, 
it had probably been a mere formality (the woman having power to 
extort at pleasure the auctoritas of the agnatic guardian) long before 
the time of Claudius. 

§ 114. Fiducia was a declaration of the conditions, purposes, and 
trusts of a mancipation. Besides its use in coemption, it was 
employed, as we shall see presently, in emancipation and adoption, 
and was the earliest form of constituting the contracts of deposit, 
and mortgage, 2,§ 59. 3, §§ 90, 91 Comm. 

Fiducia must not be identified with nuneupatio. Nuncupatio 
forms an integral part of Mancipatio, and with it is a title of 
civil law, and ground to support an actio stricti juris. Fiducia 
never coalesces with Mancipatio, but remains a separate adjunct, 
forming a title of gentile law, and ground to support a bonae 
fidei actio. Herein Mancipatio is contrasted with Tradition and 
the dispositions of natural law. Conventions accompanying. Tra. 
dition unite with it, and form a single consolidated disposition ; 
and the pacts annexed (pacta adjecta) to any contract of natural 


1 §§116-123.] DE MANCIPIO, 95 


law (venditio, conductio, mandatum, &c.) become integral parts 
thereof, and are enforced by the action brought on the prin- 
eipal contract. Stipulatio, as a civil disposition, seems to have 
originally resembled Mancipation in this respect: at least it was a 
late period of the law when the rule was clearly established that: 
Pacta incontinenti facta stipulationi inesse creduntur, D. 12, 1, 40, 
i.e, Pacts contemporaneous with a stipulation are deemed to be 
portions of the stipulation or to have acquired the efficacy of stipu- 
lations. Savigny, § 268. It is true that a Pactum adjectum 
respecting interest and annexed to the gentile disposition Mutuum 
could not be enforced by an action brought upon the Mutuum : 
but that was a consequence of the nature of the action (condictio 
certi) whereby Mutuum was enforced, and which could not embrace 
any sum beyond the original subject of the Mutuum. 


DE MANCIPIO, 


$ 116. Superest ut exponamus, 
nae in mancipio sint. 

$ 117. Omnes igitur liberorum 
personae, siue masculini, siue femi- 
mini sexus, quae in potestate paren- 
tis sunt, mancipari ab hoc eodem 
modo possunt, quo etiam serui man- 
cipari nt. 

$ 118. Idem iuris est in earum 
personis quae in manu sunt ; | — 
coemptionatoribus eodem modo pos- 
sunt | —— ——apud coemptionatorem 
filiae loco sit———nupta sit, 
nihilo minus etiam quae ei nupta 
non sit nec ob id filiae loco sit, ab 
€o mancipari possit, 








$118 a. Plerumque (uero tum) 
solum et a parentibus et a coemp- 
tionatoribus mancipantur, cum 
uelint parentes coemptionatoresque 
(et) suo iure eas personas dimit- 
tere, sicut. inferius euidentius ap- 


parebit. 


§ 116. It remains to examine 
what it is to be held in mancipation. 

§ 117. All children, male or fe- 
male, in the power of their father 
are liable to be mancipated by their 
father just as his slaves may be 
mancipated. 


$ 118. A woman in the hand 
is subject to the same mode of 
alienation, and may be mancipated 
by the person who has acquired her 
by coemption just asa daughter may 
be mancipated by her father: and 
although the acquirer by coemption 
has not the power of a father over 
her unless he is her husband, never- 
theless, even when he is not her 
husband, and therefore has not the 
status of a father, he can dispose of 
her by mancipation. 

§ 118 a. Almost the sole occasion 
of mancipation by a parent or ac- 
quirer by coemption is when the 
parent or acquirer by coemption 
designs to liberate the person man- 
cipated from his lawful control, as 
will presently be more fully ex- 
plained, 





96 


$119. Est autem mancipatio, ut 
Supra quoque diximus, imaginaria 
quaedam uenditio: quod et ipsum ius 
proprium ciuium Romanorum est; 
eaque res ita agitur: adhibitis non 
minus quam quinque testibus ciui- 
bus Romanis puberibus et prae- 
terea alio eiusdem condicionis, qui 
libram aeneam teneat, qui appella- 
tur libripens, is qui mancipio accj- 
pit, aes tenens ita dicit HVNC EGO 
HOMINEM EX IVRE QVIBITIVM MEVM 
ESSE AIO ISQVE MIHI EMPTVS ESTO 


HOC AERS AENEAQVE LIBRA ; deinde ' 


aere percutit libram idque aes dat 
ei a quo mancipio accipit quasi 
preti loco. 


$ 120. Eo modo et seruiles et 
liberae personae mancipantur; ani- 
malia quoque quae mancipi sunt, 
quo in numero habentur boues, equi, 
muli, asini; item praedia tam ur- 
bana quam rustica quae et ipsa 
mancipti sunt, qualia sunt Italica, 
eodem modo solent mancipari. 


$ 121. In eo solo praediorum 
mancipatio & ceterorum mancipa- 
tione differt, quod personae seruiles 
et liberae, item animalia quae man- 
cipii sunt, nisi in praesentia sint, 
mancipari non possunt; adeo qui- 
dem, ut eum (gwi) mancipio ac- 
cipit, ad prehendere id ipsum quod et 
mancipio datur, necesse sit; unde 
etiam mancipatio dicitur, quia manu 
res capitur; praedia uero absentia 
solent mancipari. 


$ 122. Ideo autem aes et libra 
adhibetur, quia olim aereis tantum 
nummis utebantur, et erant asses, 
dupundti, semisses, quadrantes, nec 
ullus aureus uel argenteus nummus 
in usu erat, sicut ex lege Xii tabu- 
larum intellegere possumus ; eorum- 


DE PERSONIS. 


[z. $$ 116-123- 


§ 119. Mancipation, as before 
stated, is an imaginary sale which 
is only within the competence of 
Roman citizens, and consists in the 
following process: in the presence 
of not fewer than five witnesses, 
citizens of Rome above the age of 
puberty, and another person of the 
same condition, who holds a bronze 
balance in his hands and is called 
the balance holder, the alienee hold- 
ing a& bronze ingot in his hand, pro- 
nounces the following words: Tuis 
MAN I CLAIM AS BELONGING TO ME 
BY RIGHT QUIRITARY AND BE HE 
(or, HK I8) PURCHASED TO ME BY 
THIS INGOT AND THIS SCALE OF 
BRONZE. He then strikes the scale 
with the ingot, which he delivers to 
the mancipator as by way of pur- 
chase money. 

$ 120. By this formality both 
slaves and free persons may be 
mancipated, and also such animals 
as are mancipable, namely, oxen, 
horses, mules, and asses: immov- 
ables also, urban and rustic, if sub- 
ject to quiritary dominion, such as 
Italic lands and houses, are aliened 
by the same outward form. 

§ 121. The only point wherein 
the mancipation of immovables dif- 
fers from the mancipation of mov- 
ables is this, that persons, whether 
slaves or free, and animals that are 
mancipable, must be present to be 
mancipated : indeed the alienee must 
grasp the movable to be conveyed 
with his hand, and from this manual 
prehension the name of mancipa- 
tion is derived; whereas immov- 
ables need not be present to be 
mancipated. 

§ 122. The reason of using a 
bronze ingot and a weighing scale 
is the fact that bronze was the only 
metal used in the ancient currency, 
which consisted of pieces called the 
as, the double as, the half as, the 
quarter as, and that gold and silver 


1. $$116-123.] 


que nummorum uis et potestas non 
| in numero erat sed in pondere 
—— as|ses librales erant, et du- 
pundii ——|; unde etiam dupun- 
dius dictus est quasi duo pondo, 
quod nomen adhuc in usu retinetur. 
semisses quoque et quadrantes pro 
rata scilicet portione ad pondus ex- 
aminati erant.— qui daba: olim | 
pecuniam, non numerabat eam, sed 
appendebat ; unde serui quibus per- 
mittitur administratio pe|cuniae, 
dispensatores appellati sunt et —— | 








$ 123. coemptio| 
quidem quae coem|ptionem fac 
— seruilem condicijonem a——| 
— mancipati mancipataeue seruo- 
rum loco con|stituuntur, adeo qui- 
dem, ut ab eo cuius in mancipio 
sunt, neque hereditatem neque le- 
gata aliter capere possent, quam 
(si) simul eodem testamento liberi 
esse iubeantur, sicut iuris est in 
persona seruorum. sed differentiae 
ratio manifesta est, cum a parenti- 
bus et a coemptionatoribus isdem 
uerbis mancipio accipiantwr, quibus 
serui; quod non similiter fit in 
coemptione. 





DE MANCIPIO. 


97 


were not used as media of exchange, 
as appears by the law of the Twelve 
Tables : and the value of the pieces 
was not measured by number but 
by weight [i.e. they were not legal 
tender]. Thus the as was a pound 
of bronze, the double as two pounds, 
whence its name (dupondius), which 
still survives; while the half as 
and quarter as were masses de- 
fined by weighing those respective 
fractions of & pound. Accord- 
ingly, money payments were not 
made by tale, but by weight, whence 
slaves entrusted with pecuniary 
transactions have been called dis- 
pensators. 

§ 123. If it is asked in what 
respect coemptive conveyance differs 
from mancipation, the answer is 
this, that coemption does not re- 
duce to a servile condition, whereas 
mancipation reduces to 80 com- 
pletely & servile condition that a 
person held in mancipation cannot 
take as heir or legatee under the 
will of the person to whom he is 
mancipated, unless thereby at the 
same time enfranchised, thus labour- 
ing under the same incapacity as a 
slave: the reason too of the differ- 
ence is plain, as the form of words 
employed in mancipation by a pa- 
rent or previous acquirer by coemp- 
tion is ‘identical with that used 
in the mancipation of slaves, but 
it is not so in coemptive convey- 
ance. ° 


In what respects did domestic bondage (mancipium or mancipii 


causa) differ from slavery (servitus)? Bondage was an institute of 
Civil law, slavery an institute of the law of nations, $52. Bondage 
was the result of mancipation by a parent or coemptionator, and 
only a Roman citizen was capable of becoming a bondsman. 
The proprietor has possession of the slave, the lord has no pos- 
session of the bondsman, 2, § 90. The bondsman was civis Ro- 
manus, though what became of his political capacities during his 
bondage is uncertain ; and he was liber, though alieni juris; he was 
H 


98 | DE PERSONIS. [r. $$ 116-123. 


free in respect of the rest of the world, he was only a bondsman in 
respect of his domestic superior (paterfamilias). Hence the status 
of mancipium was relative; a man could only be mancipium in 
relation to a given domestic lord: whereas the status of slavery was 
absolute; a man might be a slave without a proprietor (servus sine 
domino): for instance, a person condemned for a capital crime, who 
was called the slave of punishment (servus poenae, Inst. 1, 12, 3), 
or a slave abandoned (derelictus) by his proprietor. Accordingly, 
falling into servitus was maxima capitis diminutio, while falling 
into mancipii causa was minima capitis diminutio, § 162. The 
bondsman had no proprietary rights against his superior, 2, § 86, 
but he had some of the primordial rights; for instance, he could 
sue his superior for outrage, § 141; and he was capable of civil 
wedlock and could beget Roman citizens, though during his bond- 
age his patria potestas was in abeyance, § 135. Release from 
bondage, as from slavery, was by manumission, § 188, and the 
manumitter became the patron of the released person, $$ 166 a, 
195 a, but the manumitted bondsman became ingenuus, whereas the 
manumitted slave became libertinus. Bondage did not exist in the 
time of Justinian. 

$ 119. The libripens must not be dumb, Ulpian, 20, 7: probably 
because he had to utter the formula preserved by Festus, Raudus- 
culo libram ferito, i.e. to invite the emptor to strike the scale with 
the ingot, in order to show by the ring that the metal was genuine. 
Ihering, $ 46. 

$ 120. Under the first emperors the body of the Roman world 
consisted of three members, the imperial city, Rome, Italy, and the 
provinces, the two former being highly privileged in comparison 
with the third. After the Social War all Italy had acquired the 
Roman franchise, but Italic soil was not a purely local appellation, 
as jus Italicum was conceded to many provincial cities. Jus Itali- 
cum, or Italian privileges, implied (1) a free municipal constitution 
with elective magistrates (generally called duumviri juri dicundo) 
possessed of independent jurisdiction; and, what was still more 
important, (2) immunity from direct taxation, whether in the form 
of capitation tax (tributum capitis), imposed on all who were not 
holders of land (tributarii), or in the form of land tax (tributum 
agri), imposed on holders of land (possessores), and paid in provinces 
of the people to the aerarium under the name of stipendium, in 
provinces of the emperor to the fiscus under the name of tributum, 





1. § 124-131.] Q. M. IUS POTESTATIS SOLVATUR. 99 


2, $21. Italie soil was (3) subject to Quiritary ownership (do- 
minium ex jure Quiritium) and acquirable and transferable by 
usucapion and mancipation. Under the later emperors, as early as 
the time of Diocletian, the Roman world was equalized, not by the 
elevation of the depressed members, but by depression of those 
formerly favoured : Italy was shorn of her privileges, and all the 
empire became provincial. 

$ 122. Chemical analysis shows that the aes of which Roman 
coms consisted was bronze, a mixture of copper (cuprum), tin, and 
lead. (English bronze is an alloy composed of ninety-five parts of 
copper, four parts of tin, and one part of zinc.] Brass, a mixture of 
copper and calamine (cadmeia) or zinc, was called orichaleum. 
Silver currency was first introduced B.c. 269. The primitive 
system of currency was everywhere currency by weight, and every 
system of coinage was originally identical with a system of weights, 
the unit of value being the unit of weight of some selected metal 
(Jevons, Money, ch. 9). The pieces of which a currency by weight 
consists are not properly coins, for coins are ingots of which the 
weight and fineness are certified by the integrity of the designs im- 
pressed upon the surfaces of the metal (ibid. ch. 7). Money is 
legal tender. (Mill, Pol. Econ. 12, 7.) Legal tender is that 
which must be tendered by the debtor and accepted by the creditor 
in discharge of an obligation; e.g. in England silver coin is 
a legal tender only to the amount of forty shillings in any one pay- 
ment, bronze coins are a legal tender only to the aggregate amount 
of one shilling. Bank of England notes are a legal tender every- 
where in England but at the bank, i.e. are there convertible into 
gold. 

§ 123, As coemptio was a form of mancipatio, how does it happen 
that manus, the result of coemptio, differs from mancipium, the 
result of mancipatio? Because, Gaius answers, the formula of 
words used in the mancipatio that entered into coemptio was speci- 
fically different from the formula employed on other occasions of 
mancipation. | 


QUIBUS MODIS.IUS POTESTATIS SOLVATUR. 


$ 124. Videamus nunc quomodo $ 124. Let us now examine the 

hi qui alieno iuri subiecti sunt, eo modes whereby persons dependent 

jure liberentur, on a superior are freed frum their 
dependence, 


H2 


100 


$ 125. Ac prius de his dispicia- 
mus qui in potestate sunt. 

$ 126. Et quidem seru? quemad- 
modum potestate liberentur, ex his 
intellegere possumus quae de seruis 
manumittendis swperius exposui- 
mus. 

$ 127. Hi uero qui $n potestate 
parentis sunt, mortuo eo sui uris 
Jiunt. sed hoo distinctionem reci- 
pit; nam mortuo patre sane omni 
modo filà filiaeue sui iuris efficiun- 
tur; mortuo uero auo non omni 
modo mepotes meptesue sui turis 
fiunt, sed ita, 81 post mortem aut in 
patris sui potestatem recasuri non 
sunt. itaque si moriente auo pater 
eorum et uiuat et in potestate patris 
(sui) fuerit, tunc post obitum aut 
in patris sui potestate fiunt; si 
uero is, quo tempore auus moritur, 
aut iam moréuus est aut exiit de 
potestate ( patris, tunc hi, quia in 
potestatem) eius cadere non pos- 
sunt, sul turis fiunt. 


$128. Cum autem is cui ob 
aliquod maleficium ex lege Corne- 
lia aqua et igni interdicitur, ciui- 
tatem Romanam amittat, sequitur 
ut, quia eo modo ex numero ciuium 
Romanorum tollitur, proinde ac 
mortuo eo desinant liberi in potes- 
tate eius esse; nec enim ratio pa- 
titur, ut peregrinae condicionis 
homo ciuem Romanum in potes- 
tate habeat. pari ratione et si ei 
qui in potestate parentis sit aqua 
et igni interdictum fuerit, desinit 
in potestate parentis esse, quia 
seque ratio non patitur, ut pere- 
grinae condicionis homo in potes- 
tate sit ciuis Romani parentis. 


$ 129. Quodsi ab hostibus captus 
fuerit parens, quamuis seruws hos- 
tium fiat, tamen pendet ius libe- 
rorum propter ius postliminti, quo 
hi qui ab hostibus capti sunt, si 


DE PERSONIS. 


[1. $$ 124-131. 


$ 125. And, first, let us consider 
persons subject to power. 

$126. The mode of liberating 
slaves from their proprietor's power 
was expounded above, when we 
treated of servile manumission. 


$ 127. Children under paternal 
power become independent at the 
parent's desth, subject, however, to 
this reservation: the death of a 
father always releases his sons and 
daughters from dependence: the 
death of a grandfather only releases 
his grandchildren from dependence, 
provided that it does not subject 
them to the power of their father: 
for if at the death of the grand- 
father the father is alive and in his 
power, the grandchildren, after the 
graudfather's death,are inthe power 
of the father; but if at the time of 
the grandfather's death the father is 
dead or not subject to the grand- 
father, the grandchildren will not 
fall under his power, but become 
independent. 

$ 128. As interdiction from fire 
and water for an offence against 
the Cornelian law involves loss of 
citizenship, such removal of a man 
from the list of Roman citizens 
operates, like his death, to liberate 
his children from his power, for it 
is inconsistent with civil law that 
an alien should exercise parental 
power.over a citizen of Rome: con- 
versely, the interdiction from fire 
and water of a person subject to 
parental powerterminatesthe power 
of the parent, because it is a simi- 
lar inconsistency that a person of 
alien status should be subject to 
the parental power of a Roman 
citizen. 

$129. Though the hostile capture 
of the parent makes him a slave of 
the enemy, the status of his children 
is suspended by his right of retro- 
spective rehabilitation, whereby on 


r.$$124—131.] Q. M. IUS POTESTATIS SOLVATUR. 


reuersi fuerint, omnia pristina iura 
recipiunt ; itaque reuersus habebit 
liberos in potestate. si uero illic 
mortesus sit, erunt quidem liberi 
tul iuris; sed utrum ex hoc tem- 
pore quo morteus est apud hostes 
parens, an ex illo quo ab hostibus 
captus est, dubitari potest. ipse 
quoque filius.neposue si ab hostibus 
captus fuerit, similiter dicemus 
propter ius postliminti potestatem 
quoque parentis in suspenso esse. 


$130. Praeterea exeunt liberi 
uirilis sexus de parentis potestate, 
ti flamines Diales inaugurentur, et 
feminini sexus, si uirgines Vestales 
capiantur. 

$131. Olim quoque, quo tem- 
pore populus Romanus in Latinas 
regiones colonias deducebat, qui 
iussu parentis in coloniam Latinam 
nomen dedissent, desinebant in po- 
testate parentis esse, quia efficeren- 
tur alterius ciuitatis ciues. 


10f 


escape from captivity a man recovers 
all former rights: accordingly, if 
the father returns he will have his 
children in his power; if he dies 
in captivity his children will be in- 
dependent, but whether their in- 
dependence dates from the death 
of the parent or from his capture 
by the enemy may be disputed. 
Conversely, if a son or grandson 
is captured by the enemy, his 
right of subsequent recovery of 
status causes the power of his 
ascendent to be only provisionally 
suspended. 

§ 130. Further, a son is liberated 
from parental power by his inaugu- 
ration as flamen of Jove, a daughter 
by her selection for the office of 
Vestal virgin. 

§ 131. Formerly, too, when Rome 
used to send colonies into the Latin 
territory, a son who by his parents’ 
order enrolled his name in a colony 
ceased to be under parental power, 
since he was made a citizen of an- 
other state. 


§ 128. Relegation was a milder form of punishment than de- 
portation, and involved no loss of civitas nor of domestic nights, 


Inst. 1, 12, 2. 


§ 129. Postliminium is the recovery of rights by a person re- 


turned from captivity, or the recovery of rights over a person or 
thing recovered from hostile possession. The word postliminium 
seems to be derived from pot, the root of potestas or possessio, 
and limen or stlimen = ligamen, and therefore would denote the 
bridging over of the interval of captivity by a fiction of continued 
capacity or possession, as a doorway is bridged over by a lintel 
§ 130. In imitation of the ancient law Justinian enacted that 
eerta dignities should release from patria potestas; for instance, 
patriciatus and the episcopate, the latter because it made a man 
spiritual father of all mankind, Novella, 81. 
. $181. The Latini or members of coloniae Latinae were an inter- 
mediate class between cives and peregrini. 'They differed from 








102 DE PERSONIS. [r. $$ 132-136. 


peregrini in that they had commercium, i.e. capacity of Quiritary 
ownership with its incidents, and they differed from cives in not 
having connubium, and consequently being incapable of patria 
potestas, Cie. Pro Caecina, 35, Cf. $ 22 comm. A Roman citizen 
eould only become a Latin with his own consent. Qui cives 
Romani in colonias Latinas proficiscebantur, fieri non poterant 
Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. 
‘Roman citizens who went to Latin colonies did not lose their 
citizenship without voluntary enrolment among the colonists.’ See 


also Cic. Pro Balbo, 11. 


$ 132. Praeterea emancipatione 
desinunt liberi in potestate paren- 
tum esse. sed filius quidem tribus 
mancipationibus, ceteri uero liberi, 
siue masculin] sexus siue feminini, 
una mancipatione exeun de paren- 
tum potestate; lex enim XII tabu- 
larum tantum in persona fili de 
tribus mancipationibus loquitur his 
uerbis 8I PATER FILIVM (TER) 
VENVM DVIT, A PATRE FILIVS LIBER 
ESTO. eaque res ita agitur: man- 
eipat pater filium alicui; is eum 
uindicta manumittit; eo facto re- 
uertitur in potestatem patris; is eum 
iterum mancipat uel eidem uel alii 
(sed in usu est eidem mancipari) 
isque eum postea similiter uindicta 
manumittit ; eo facto rursus in po- 
testatem patiis reuertitur; tertio 
pater eum mancipat uel eidem uel 
alii (sed hoc in usu est, ut eidcm 
mancipetur), eaque mancipatione de- 
sini ?n potestate patris esse, e£ amsi 
nondum manumissus sit sed adhuc 
in causa mancipü. si —| | 
missi —|——- 
(8 uersus in C legi nequeunt.) 








§ 132. Emancipation also libe- 
rates children from the power of 
the parent, a son being liberated 
by three mancipations, other issue, 
male or female, by a single manci- 
pation; for the law of the Twelve 
Tables only mentions three manci- 
pations in the case of the son, which 
it does in the following terms: IF a 
FATHER SELL A SON THREE TIMES, 
THE SON SHALL BE FREE FROM THE 
FATHER. The ceremony is as follows: 
thefather mancipates his son to some 
one ; tle alienee manumits him by 
fictitious vindication, whereupon he 
reverts into the power of his father ; 
the father again mancipates him to 
the same er a different alienee, 
usually to the same, who again 
manumits him by fictitious vindica- 
tion, whereupon he reverts a second 
time into the power of his father ; 
the father then mancipates him a 
third time to the same or a different, 
alienee, usually to the same, and 
by this third mancipation the son 
ceases to be in the power of the 
father even before manumission, 
while still in the status of a person 
held in mancipation. [The alienee 
or fiduciary father should then 
remancipate him to the natural 
father, in order that thereupon the 
natural father by manumitting him 
may acquire the rights of patron 
instead of the fiduciary father. | 
(Epit. 1, 6, 3.) 


1$$132-136.] Q. M.IUS POTESTATIS SOLVATUR. 





$132 a. 
bonis liberti| 
(3 uersus in C legi nequeunt.) 
feminae una | manci- 
patione exeunt de patris potestate 
—! manumissae fuerint s—| 


—|-—| 


| —— patrono in 

















$ 133. —— Admonendi autem 
sumus liberum esse arbitrium et qui 
fium et ex eo nepotem in potestate 
habelnt, filium quidcm de potestate 
dimittere, nepotem uero in potestate 
retinere ; uel ex diuerso filiwn qui- 
dem in potestate retinere, nepotem 
uero manumittere, uel omnes sui 





turts efficere. eadem et de prone- 
pote dicta esse intellegemus. 
§ 134. | et duae 








intercedentes manumissiones pro- 
inde fiunt, ac fieri solent, cum ita 
eum peter de potestate dimittit, «t 
sui iuris efficiatur. deinde aut 
petri remancipatur, et ab eo is qui 
adoptat, uindicat apud praetorem 
filum suum esse, et illo contra non 
uindicante (a) praetore uindicanti 
filius addicitur; aut non remanci- 
patur patii sed ab eo uindicat is qui 
adoptat, apud quem tn tertia manci- 
patione est; sed sane commodius 
est patri remancipari. In ceteris 
uero liberorum personis, seu mas- 
culini seu feminini sexus, una scl- 
licet mancipatio sufficit, et aut re- 
mancipantur parenti aut non re- 
mancipantur. Eadem et in pro- 
uncis apud praesidem prouinciae 
solent fieri. 


103 


$ 132a. A manumitter of a free 
person from the state of mancipium 
has the same rights to the suc- 
cession of his property as a patron 
has in respect of the property of 
his freedman. Women and male 
grandsons by a son pass out of the 
power of their father or grand- 
father after one mancipation ; but 
unless they are remancipated by 
their fiduciary father, and manu- 
mitted by their natural father, the 
latter has no rights of succession 
to their property. 

§ 133. A grandfather who has 
both a son, and by his son a grand- 
son, in his power, may either release 
his son from his power and retain 
the grandson, or retain the son and 
manumit the grandson, or emanci- 
pate both son and grandson; and 
a great grandfather has a similar 
latitude of choice. 


§ 134. A father is also divested 
of power over his children by giving 
them in adoption. To give a son 
in adoption, the first stage is three 
mancipations and two manumissions, 
as in emancipation; after this the 
son is either remancipated to the 
father, and by the adopter claimed 
as son from him by vindication be- 
fore the praetor, and in default of 
counterclaim by the natural father 
is awarded by the praetor to the 
adoptive father as his son; or with- 
out remancipation to the natural 
father is directly claimed by the 
adoptive father by vindication from 
the alienee of the third mancipation 
(fiduciary father); but it is more 
convenient to interpose a remanci- 
pation to the natural father. In the 
case of other issue, male or female, 
a single mancipation suffices, with 
or without remancipation to the 
natural father. In the provinces a 
similar ceremony can be performed 
before the president of the province. 





104 


$135. Qui ex filio semel iterum- 
ue mancipato conceptus est, licet 
post tertiam mancipationem patris 
sui nascatur, tamen in aui potes- 
tate est, et ideo ab eo et emanci- 
pari et in adoptionem dari potest. 
- At is qui ex eo filio conceptus est 
qui in tertia mancipatione est, non 
nascitur in aui potestate. sed eum 
Labeo quidem existimat tn eiusdem 
mancipio esse cuius et pater sit; 
utimur autem hoc iure, ut quam- 
diu pater eius in mancipio sit, pen- 
deat ius eius; et siquidem pater 
eius ex mancipatione manumissus 
erit, cadat in eius potestatem; si 
uero is dum in mancipio sit, de- 
cesserit, sui iuris fiat. 





$135 a. | Eadem scilicet | 
nam | ut supra diximus, 
quod in filio faciunt tres manci|pa- 
tiones, hoc, facit una mancipatio in 
nepote. 














§ 136. | ——|——4 
Maximi et | Tuberonis cautum est, 
ut haec quod ad sacra tantum uidea- 
tur in manu esse, quod uero ad ce- 
teras causas proinde habeatur, af- 
que si in manum non conuenisset.| 
potestate parentis 
liberantur; nec in|terest an in uiri 
sul manu sint an extranei, quamuis 
hae solae loco filiarum habeantur, 
quae in uiri ma|nu sunt. 








DE PERSONIS. 


[1. $$ 182-136. 


$ 135. A grandson begotten 
after the first or second mancipa- 
tion of the sop, though born after 
the third mancipation, is subject 
to the power of the grandfather, 
and may by him be given in adop- 
tion or emancipated: a grandson 
begotten after the third mancipa- 
tion is not born in the power of 
the grandfather, but, according to 
Labeo, is born in mancipation to the 
person to whom his father is manci- 
pated. "The rule, however, which 
has obtained acceptance is, that so 
long as the father is in mancipa- 
tion the status of the child is in 
suspension, and if the father is 
manumitted the child falls under 
his power; if the father dies in 
mancipation the child becomes in- 
dependent. 

$ 135 a. The rule is the same in 
the case of a child begotten of a 
grandson who has been once man- 
cipated, but not yet manumitted ; 
for, as before mentioned, the result 
of three mancipations of the son is 
obtained by a single mancipation of 
the grandson. 

$136. A wife subjected to the 
hand of a husband by confarreation 
is not thereby freed from the power 
of her father; and this is declared 
by the senatusconsult of the consuls 
Maximus and Tubero respecting 
the priestess of Jove, which limits 
the marital hand to the sphere of 
sacred rights, and declares the status 
of the wife unaffected in other re- 
spects by subjection to the hand of 
the husband. Subjection to hand 
by coemption liberates from the 
power of the parent, and it is im- 
material whether it is a coemption 
subjecting the woman to the hand 
of a husband or to the hand of 
& stranger, although the status 
of quasi daughter only belongs 
to a woman in the hand of a 


husband. 


1. §§ 132-136.] Q. M. IUS POTESTATIS SOLVATUR. I05 


$182. The epitomator of Gaius in the code of Alarie 2 mentions 
as present at an emancipation, besides the five witnesses and libripens, 
a seventh person whom he calls antestatus, who is also mentioned in 
the bronze tablet referred to in the remarks on pignus and fiducia, 
Book 3, §§ 90, 91 comm. 

The vindicta or wand used in manumission, as already stated, was - 
the rod or verge symbolizing a lance carried by the parties in a real 
action. The status of freedom (libertas) whether as opposed to 
slavery or to bondage (mancipii causa) was a real right (jus in rem), 
and therefore a subject to be contested in a vindicatio, Manumis- 
sion by vindicta was a collusive vindicatio, in other words, an in 
jure cessio. 

The epitomator of Gaius calls the person to whom the son was 
mancipated pater fiduciarius, which implies that the mancipation 
was accompanied by a fiducia or declaration of trust. The trust 
would be that the pater fiduciarius should make default or confess 
in the subsequent vindicatio. 

$184. Assuming that in adoption, as in emancipation, the person 
to whom the son was mancipated was called pater fiduciarius, we 
find in adoption three fathers in the field, pater naturalis, pater 
fiduciarius, and pater adoptivus. Remancipation to the natural father 
added a stage to the process; but is described as more convenient, 
because it reduced the number of actors from three to two; for it 
enabled the part of pater fiduciarius to be played by pater adoptivus. 
It appears from § 135 that though the status of bondage was 
formal or fictitious, yet to give an air of reality to the drama, the 
status was made to have a certain duration. So when a prince is 
advanced from the rank of private to that of general, a certain 
interval is interposed between the intermediate promotions for the 
sake of decorum, though, the whole proceeding being unreal, all the 
steps, if the authorities were so disposed, might be compressed into 
asingle day. Ihering, § 46. 

The status of paterfamilias or of filiusfamilias being, like other 
kinds of status, a real right, the clnim of a person as filiusfamilias 
was a matter to be contested in a real action or vindicatio. This 
would seem the more obvious to the early jurists, as they probably 
drew no distinction between patria potestas and dominica potestas, 
Le. between paternal power and absolute proprietorship. This 
claim was sometimes a matter of contentious (not voluntary) juris- 
diction, ie. of genuine litigation. Per hanc autem actionem liberae 


106 DE PERSONIS, [1. $$ 137-141, 


personae quàe sunt juris nostri, utputa liberi qui sunt in potestate, 
non petuntur . . . . nisi forte adjecta causa quis vindicet. Unde si 
quis ita petit, filium suum, vel, in potestate ex jure Romano, videtur 
mihi et Pomponius consentire, recte eum egisse; ait enim, adjecta 
causa ex lege Quiritium. vindicare posse, Dig. 6, 1,2. ‘If free 
persons, dependent on the plaintiff— for instance, children subject 
to his power—are sought to be recovered by vindication, the title or 
mode of dependence must be specified in the formula (intentio). 
Thus a claim of a person as son, or as subject to power by 
the law of Rome, even according to Pomponius, is regular: for 
he says that the specification of a title under a statute of the 
Quirites makes the vindication valid (The anomalous forms, ex 
jure Romano, ex lege Quiritium, instead of the usual, ex jure 
Quiritium, were perhaps peculiar to the pleadings in this kind of 
guit.) 

Justinian simplified the formalities of emancipation and adop- 
tion. He allowed the former to be accomplished by a simple 
declaration before a competent magistrate, Inst. 1, 12, 6; and 
the latter by appearance of the parties before a competent 
judge and insinuatio i.e. a memorandum of the transaction in 
the public records of his office (actis intervenientibus), Cod. 8, 
48, 11. 

In English law children are enfranchised, and the limited power 
of the father over their person and property is terminated by two 
events which did not operate emancipation in Roman law, marriage 
and arrival at years of discretion, that is, attainment of majority by 
the completion of twenty-one years of age. At these points, 
under English law, the empire of the father or other guardian 
gives place to the empire of reason; whereas neither marriage 
nor majority released the Roman son or daughter from patria 
potestas. 


$ 137. | 











| | $137. A woman subjected to 


— mancipatione desinunt in manu 
esse, et si ex ea mancipatione manu- 
missae fuerint, sui iuris efficiuntur. 


$137 a. quae | 
cogere coemptzjonatorem potest, ut 
se remancipet, cui ipsa uellit 
nihilo magis potest cogere, quam 














hand by coemption is, like a daugh- 
ter, released therefrom by one 
mancipation, and on subsequent 
manumission becomes independent. 

$ 137 a. Between a woman who 
has entered into & coemption with 
& stranger and & woman who has 
entered into a coemption with a 


1.8§137-141.] Q. M. MANU ET MANCIPIO LIBERENTUR. 


et filis patrem. sed filia quidem 
nulo modo patrem potest cogere, 
etiamsi adoptiua sit; haec autem 
(wrum) repudio misso proinde 
conpellere potest, atque si ei num- 
quam nupta fuisset. 


$138. Ai qui in causa mancipii 
sunt, quia seruorum loco habentur, 
undicta, censu, testamento manu- 
missi sul iuris fiunt. 


$ 139. Nec tamen in hoc casu 
lex Aelia Sentia locum habet. itaque 
nihil requirimus, cuius aetatis sit is 
qui manumittit et qui manumitti- 
tur; ac ne illud quidem, an patro- 
num creditoremue manumiseor ha- 
beat. ac ne numerus quidem lege 
Fufia Caninia finitus in his personis 
locum habet. 

§ 140. Quin etiam inuito quo- 
que eo cuius in mancipio sunt, 
censu libertatem consequi possunt, 
excepto eo quem pater ea lege man- 
cipio dedit, ut sibi remancipetur ; 
nam quodammodo tunc pater po- 
testatem propriam reseruare sibi 
uidetur eo ipso, quod mancipio re- 
cipit. ac neis quidem dicitur inuito 
eo cuius in mancipio est censu li- 
bertatem consequi, quem pater ex 
noxali causa [mancipio dedit |, ueluti 
quod furti eius nomine damnatus 
est, [et eum] mancipio actori dedit ; 
nam hunc actor pro pecunia habet, 


107 


husband there is this difference, 
that the former has the power of 
compelling the coemptionator to re- 
mancipate her to anyone she pleases; 
whereas the latter cannot compel 
him to do this any more than a 
daughter can her father. A daugh- 
ter, however, has no means of com^ 
pelling her father to emancipate 
her even if she is only such by 
adoption, whereas a wife by send- 
ing & message of divorce can com- 
pel her husband to release her from 
his hand, just as if they had never 
been married. 

$138. As persons in mancipation 
have the status of slaves, manumis- 
sion by fictitious vindication, by 
entry on the censor's register, by 
testamentary disposition, are the 
modes by which they acquire inde- 
pendence. 

$ 139. But to them the lex Aelia 
Sentia has no application: no age 
of the person manumitting or the 
person manumitted is required ; the 
manumission is subject to no pro» 
viso against fraud on the rights of 
patron or creditors, nor even to 
the numerieal limitation of the lex 
Fufia Caninia. 

$ 140. The assent of the holder 
in mancipation is not required for 
manumission by entry on the regis- 
ter of the censor, except when a son 
has been mancipated by a father 
with a condition of remancipation, 
for by such a condition the father 
is deemed to have reserved a certain 
amount of parental power: the 
assent of the holder in mancipation 
is also necessary to manumission 
by entry on the censor’s register 
when a delinquent son has been 
surrendered by his father in con- 
sequence of a noxal suit; when, 
for instance, the father has been 
condemned in an action for a theft 
committed by the son, and has by 
mancipation surrendered his son to 





108 m DE PERSONIS. 


$ 141. In summa admonendi 
sumus aduersus eos quos in man- 
cipio habemus, nihil nobis contu- 
meliose facere licere ; alioquin in- 
iuriarum tenebimur. ac ne diu qui- 
dem in eo iure detinentur homines, 
sed plerumque hoc fit dicis gratia 
uno momento, nisi sc?licet ex nox- 
ali causa mancipentur. 


[1. $$ 142-154: 


the plaintiff in lieu of pecuniary 
damages. 

$ 141. Finally, it is to be observed 
ihat contumelious treatment of a 
person held in mancipation is not 
permitted, but renders liable to an 
action of outrage; and the status 
generally is not persistent, but 
merely formal and momentary, ex- 
cept when it is the consequence of 
gurrender in lieu of damages in an 


action of trespass. 


$137. Dissolution of marriage was either by the consent of both 
parties (divortium) or by the act of one (repudium). The message of 
repudiation contained the formula, Tuas res tibi habeto, ‘ Take away 
thy property. Mimam illam suam suas res sibi habere jussit, claves 
ademit, exegit; Cie. Phil. 2, 28. ‘The actress was ordered to pack, 
deprived of the keys, turned out of the house.’ The lex Julia de 
adulteriis prescribed a form for repudium, and required the message 
to be delivered by & freedman of the family, in the presence of 
seven witnesses above the age of puberty and citizens of Rome. 
The party who made a causeless repudium, or whose misconduct 
justified a repudium, was punished by pecuniary losses in respect of 
dos and propternuptial donations. After much veering legislation 
in later times, Justinian enacted that a man or woman who divorced 
without a cause should retire to a cloister and forfeit all his or her 
estate, one moiety to his or her successors, and the other moiety to 
the cloister. Nov. 184, 11. 

§ 140. Ihering, § 32, infers from this that the census, like a year 
of jubilee, freed all but noxal and fictitious bondsmen at the end of 
five years: and that the Twelve Tables, in limiting a father to three 
mancipations, disabled him from selling the services of his son for 
more than fifteen years, 


DE TUTELIS. 


§ 142. Transeamus nunc ad aliam $142. Let us now proceed to 


diuisionem. nam ex his personis 
quae neque in potestate neque in 
manu neque in mancipio sunt, quae- 
dam uel in tutela sunt uel in cura- 
tione, quaedam neutro iure tenen- 
tur. uideamus igitur quae in tu- 


another classification : persons not 
subject to power, nor to hand, nor 
held in mancipation, may still be 
subject either to guardianship or to 
administration, or may be exempt 
from both forms of control. We will 


I. $$142-154.] 


tela, quae in curatione sint; ita 
enim intellegemus ceteras personas 
quae neutro iure tenentur. 


$143. Ac prius dispiciamus de 
his quae in tutela sunt. 

$ 144. Permissum est itaque 
parentibus, liberis quos in pote- 
state sua habent, testamento tu- 
tores dare: masculini quitlem sexus 
inpuberibus, ( feminini autem sexus 
cuwscumque aetatis sint, et tum 
quo)que cum nuptae sint. ueteres 
enim uoluerunt feminas, etiamsi 
perfectae aetatis sint, propter animi 
leuitatem in tutela esse. 


$ 145. Itaque si quis filio filiae- 
que testamento tutorem dederit, et 
ambo ad pubertatem peruenerint, 
flius quidem desinit habere tu- 
torem, filia uero nibilo minus in 
tutela permanet; tantum enim ex 
lege Iulia et Papia Poppaea iure 
liberorum tutela liberantur feminae. 
lquimur autem exceptis uirgin- 
ibus Yestalibus, quas etiam ueteres 
in honorem sacerdotii liberas esse 
uoluerunt, itaque etiam lege XII 
tabularum cautum est. 


$ 146. Nepotibus autem nepti- 
busque ita demum possumus testa- 
mento tutores dare, si post mor- 
tem nostram in patris gui potes- 
tatem [iure] recasuri non sint. 
ilaque si filius meus mortis meae 
tempore in potestate mea sit, nepo- 
les ex eo non poterunt ex testa- 
mento meo babere tutorem, quam- 
uis in potestate mea fuerint ; scili- 
cet qnia mortuo me in patris sui 
potestate futuri sunt. 


$ 147. Cum tamen in conpluri- 
bus aliis causis postumi pro iam 
natis habeantur, et in hac causa 
plaeuit non minus postumis quam 
iam natis testamento tutores dari 


DE TUTELIS. 


109 


first examine what persons are sub- 
ject to guardianship and adminis- 
tration, and thus we shall know 
who are exempt from both kinds of 
control. 

§ 143. And first of persons sub- 
ject to guardianship or tutelage. 

§ 144. The law allows a parent 
to appoint guardians in his will for 
the children in his power, below the 
age of puberty, if they are males; 
whatever their age, and notwith- 
Standing their marriage, if they 
are females; for, according to our 
ancestors, even women who have 
attained their majority, from their 
intellectual weakness, require to be 
kept in tutelage. 

$ 145. Accordingly, when a bro- 
ther and sister have a testamentary 
guardian, on attaining the age of 
puberty the brother ceases to be a 
ward, but the sister continues, for it 
is only under the lex Julia and Papia 
Poppaea and by title of maternity 
that women are emancipated from 
tutelage; except in the case of vestal 
virgins, for these, even in our an- 
cestors' opinion, are entitled by their 
sacerdotal function to be free from 
control, and so the law of the Twelve 
Tables enacted. 

$ 146. A grandson or grand- 
daughter can only receive a tes- 
tamentary guardian provided the 
death of the testator does not bring 
them under parental power. Ac- 
cordingly, if before the grand- 
father's death the father was in the 
grandfathers power, the grand- 
children, though in the grand- 
father's power, cannot have a testa- 
mentary guardian, because his death 
leaves them in the power of the 
father. 

$ 147. As in many other matters 
after-boru children are treated on 
the footing of children born before 
the execution of the will, so it is 
ruled that after-born children, as 


410 


posse, si modo in ea causa sint, 
ut si wiuis nobis nascantur, in po- 
lestate nostra fiant. hos (enim) 
etiam heredes instituere possumus, 
cum extraneos postumos heredes 
instituere permissum non sit. 


$148. (Vxori) quae in manu 
est, proinde ac filiae, item  nurui 
quae in filic manu est, proinde ac 
nepti tutor dari potest. 


$149. Rectissime autem tutor 
sic dari potest L. TITIVM LIBERIS 
MEIS TVTOREM Do. sed et si ita 
scriptum sit LIBERIS MEIS uel VXORI 
MEAE TITIVS TVTOR ESTO, recte 
datus intellegitur. 


$ 150. In persona tamen uxoris 
quae in manu est, recepta est etiam 
tutoris optio, id est ut liceat ei per- 
mittere quem uelit ipsa tutorem 
sibi optare, hoc modo TITIAK VXORI 
MEAE TVTORIS OPTIONEM DO. quo 
casu licet uxori (tutorem optare) 
uel in omnes res uel in unam forte 
aut duas. 


$ 151. Ceterum aut plena optio 
datur aut angusta. 

$152. plena ita dari solet, ut 
proxime supra diximus. angusta 
ita dari solet TITIAE VXORI MEAE 
TVTORIS OPTIONEM DVMTAXAT 8E- 
MEL DO, aut DVMTAXAT BIS DO. 


$ 153. Quae optiones plurimum 
inter se differunt. nam quae plenam 
optionem habet, potest semel et 
bis et ter et saepius tutorem optare ; 
quae uero angustam habet optionem, 
si dumtaxat semel data est optio, 
amplius quam semel optare non 
potest ; si dwmtaxat bis, amplius 
quam bis optandi facultatem non 
habet. 


DE PERSONIS. 


[r. §§ 142-154. 


well as children born before the 
will was made, may have guardians 
tberein appointed, provided that if 
born in the testator's lifetime they 
would be subject to his power [and 
immediate successors], for the in- 
heritance may be devised to such 
after-born children, but not to after- 
born strangers. 

$148. A wife in the testator's 
hand may receive & testamentary 
guardian as if she were a daughter, 
and a son's wife in the son's hand 
as if she were a granddaughter. 

§ 149. The most regular form of 
appointing a guardian is in the fol- 
lowing terms: ‘I A»PorNT Lucius 
TITIUS GUARDIAN TO MY CHILDREN ;' 
the form, * BE Lucius Tittus GvAR- 
DIAN TO MY CHILDREN—or, ‘TO MY 
WIFE '—is also valid. 

$ 150. To a wife in his hand a 
testator is permitted to devise the 
selection of her guardian, that is, he 
may authorize her to choose whom 
she pleases, in the following terms: 
‘To TiriA My WIFE I DEVISE THE 
SELECTION OF HER GUARDJAN;’ 
whereupon she may nominate either 
& general guardian or a guardian for 
certain specified matters. 

§ 151. The option of a guardian 
may be limited or unlimited. 

$ 152. Unlimited option is usu- 
ally devised in the form above men- 
tioned ; limited option in the follow- 
ing terms: ‘To Titia My WIFE I 
DEVISE NOT MORE THAN ONE OPTION’ 
~—or, ‘NOT MORE THAN TWO OPTIONS 
—OF A GUARDIAN.’ 

§ 153. The effect of these forms 
is very different: unlimited option 
is a power of changing the guardian 
an indefinite number of times; - 
limited option is the right of a 
single choice, or of two choices, as 
may happen. 


1. §§ 142-154.] DE TUTELIS. 111 


$ 154. Vocantur autem hi qui § 154. A guardian nominated by 
nominatim testamento tutores dan- the testator is called a dative guar- 
tur, datini; qui ex optione sumun- dian; one selected by the widow is 
tur, optiui. called an optative guardian. 


Having examined those inferiorities of legal capacity which con- 
stituted a status, we now proceed to examine certain cases of inca- 
pacity which, though analogous to the former as belonging to the 
sphere of unequal rights, were not included by the Romans under 
the denomination of status. The inferiorities of capacity in infancy, 
minority, wardship, curatel, were not so considerable as those which 
we have hitherto examined. The diminution of rights in a lapse 
from independence to curatel was less than the least capitis minutio, 
and accordingly a prodigal who was interdicted from the administra- 
tion of his estate and subjected to the control of a eurator, was not 
said to undergo a status mutatio: his patrimony still vested in him, — 
though he was deprived of its administration; whereas adrogatio © 
and in manum conventio divested a person of the capacity of 
ownership and active obligation: inferior status, in a word, is 
incapacity of right; wardship and curatel are only incapacities of 
disposition. 

Guardianship is thus defined: Est autem tutela jus ac potestas in 
capite libero, ad tuendum eum qui propter aetatem se defendere 
nequit, jure civili data ac permissa, Inst. 1, 18, 1. * Guardianship 
is à right and power over an independent person conferred or 
authorized by the Civil law for the protection of one who is in- 
capaeitated by age for self-defence. The duties of the guardian 
related both to the person and to the property of the ward. In 
respect of his person, the guardian was charged with the care of 
his nurture and education ; in respect of his property, the guardian’s 
funetion was distinguished as either exclusive administration or 
concurrent interposition of authority. Up to the age of seven the 
ward was called infans, and during this period the guardian acted 
alone (administratio, negotiorum gestio); after the completion of 
seven years until the age of puberty (fourteen for males, twelve for 
females) the ward acted, and the guardian concurrently gave his 
sanction (auctoritas), 8, § 109. Even in the latter period the guardian 
might act alone or concurrently according to his discretion: he 

probably gave his sanction in proceedings governed by the Civil law 
[Nemo alieno nomine lege agere potest, Dig. 50, 17, 123, ‘No ap- 
pearance in another person's name, i.e. no representation or agency, 











112 DE PERSONIS. (1. $$ 156—168. 


is admissible in statute-process?], and simply administered in proceed- 
ings governed by the law of nations. In the time of Gaius, women 
continued subject to guardianship after the age of puberty: the 
functions of the guardian were then confined to auctoritas, which 
in most cases was a mere formality; the power of administration 
vested in the woman, $ 190. 

$ 147. Postumus (afterborn) has no etymological connection with 
inhumation, and no reference to the death of the testator, but simply 
denotes a person born after the execution of a will, whether after 
the death or in the lifetime of the testator. The law, however, 
originally made a distinction between the two cases. The institu- 
tion or disinherison of a postumus born after the death of a testator 
was valid at Civil law, and availed to save the will from rupture by 
afterbirth (agnatio) of an immediate successor (suus heres): the 
same institution or disinherison would have been invalid and un- 
availing if the postumus had been born in the lifetime of the 
testator, before the enactment of the lex Junia Velleia in the 
reign of Augustus, 2 § 180, comm. A grandson was postumus 
alienus if born in the hfetime of his father; he was postumus suus, 
i.e. immediate lineal successor to his grandfather, if born after the 
death of his father, 2 $ 241, and only in this event could he receive 
a guardian by the will of his grandfather. Aquillius Gallus in- 
vented a form for the conditional institution or disinherison of a 
grandson, and, doubtless, also for the nomination of his guardian, 
by a will executed in the lifetime of his father: conditioned, that 
is, to take effect in the event of the decease of the father before the 
death of the grandfather. It appears, then, that the statement of 
Gaius, § 147, is inaccurate, unless we complete it by words taken 
from the parallel passage in the Institutes, 1, 18, 4, and read : Si 
modo in ea causa sint ut, si vivis nobis nascantur, sui et in 
potestate nostra fiant. 

$ 148. In filii manu must be regarded as an inaccurate expres- 
sion: for filiusfamilias was incapable of all civil rights, including 
manus, and could only serve as a conduit-pipe by which the right 
of manus vested in his father. 


DE LEGITIMA AGNATORUM TUTELA. 


§ 155. Quibus testamento quidem § 155. In default of a testament- 
tutor datus non sit, iis ex lege Xi? ary guardian the statute of the 
(tabularum) agnati sunt tutores, Twelve Tables assigns the guardian- 


1.§ 155-158.] DE LEGITIMA AGNATORUM TUTELA. 


qui uocantur legitimi. 


$ 156. Sunt autem agnati per 
uirilis sexus personas cognatione 
juncti, quasi a patre cognati, ueluti 
frater eodem patre natus, fratris 
filius neposue ex eo, item patruus 
et patrui filius et nepos ex eo. at 
li qui per feminini sexus personas 
cognatione coniunguntur, non sunt 
agnati, sed alias naturali iure cog- 
nati. itaque inter auunculum et 
sororis filium non agnatio est, sed 
cognatio, item amitae, materterae 
flus non est mihi agnatus, sed 
cognatus, et inuicem scilicet ego illi 
eodem iure coniungor, quia qui na- 
scuntur, patris, non matris familiam 
secuntur. 

$157. Et olim quidem, quantum 
ad legem xii tabularum attinet, 
etiam feminae agnatos habebant 
tutores, sed postea lex Claudia 
lats est, quae quod ad feminas 
attinet, (agnatorum) tutelas sus- 
tulit; itaque masculus quidem in- 
pubes fratrem puberem aut patruum 
habet tutorem, femina uero talem 
habere tutorem non potest. 


§ 158. Sed agnationis quidem ius 
capitis deminutione perimitur, cog- 
nationis uero ius eo modo non com- 
mutatur, quia ciuilis ratio ciuilia 
quidem iura corrumpere potest, na- 
turalia uero non potest. 


113 


Ship to the nearest agnates, who 
are hence called statutory guar- 
dians. 

$ 156. Agnates (3 $ 10) are cog- 
nates through males, that is, through 
their male ascendents: as a brother 
by the same father, such brother's 
son or son's son; a father's brother, 
his son or son's son.  Cognates 
through female ascendents are 
merely natural kinsmen. Thus, 
between a man and his sister’s son 
there is not agnation, but cogna- 
tion: so my father’s sister’s son or 
my mother’s sister's son is not my 
agnate, but my cognate, and vice- 
versa; for children are members 
of their father's family, but not 
of their mother's. 


$ 157. In former times, the statute 
of the Twelve Tables made females 
as well as males wards of their 
agnates: subsequently a law of the 
Emperor Claudius abolished this 
wardship in the case of females: 
accordingly, a male below the age 
of puberty has his brother above 
the age of puberty or his paternal 
uncle for guardian, but a female 
cannot have such a guardian. 

$ 158. Loss of status extinguishes 
rights by agnation, while it leaves 


. unaffected rights by cognation, be- 


cause civil changes can affect rights 
annexed to a civil title, but not 
rights annexed to a natural title. 


$158. The maxim here enunciated is calculated to give a false 


idea of the relation of the institutes of Gentile law to those of Civil 
law, Title by cognation is just as much an institute of Positive 
law as title by agnation. The synthesis of title and right in Civil 
law may be freakish and capricious, while that in Gentile law is 
reasonable and expedient ; but both are equally positive institutions, 
and both are equally mutable and liable to be overruled. Accord- 
ingly, the specious-sounding maxim, that revolutions in status or 
avil condition cannot affect such rights as are annexed to natural 
titles, erumbles away as soon as we examine it, for we find that it 
I 


DE PERSONIS. 


only holds good of the most insignificant change, the minima 
capitis minutio, 8 § 27, and that maxima and media capitis minutio 
extinguish gentile title by cognation as well as civil title by agna- 
tion, Inst. 1, 16, 6. 

The truth is, that the effects of a collision of Civil and Natural 
law fall under two very different classes, which it is important to 
distinguish, 

1. If the command of the civil lawgiver, under the sway of 
motives financial, political, ethical, or religious, is highly imperious 
and absolutely compulsive, all natural titles with which it may 
come in conflict are absolutely void and inoperative: e.g. the Se. 
Velleianum, prohibiting suretyship of women, allowed no naturalis 
obligatio to be produced by any such suretyship: and so with the 
laws prohibiting gambling and usury. 

2. If the command of the civil law is less peremptory and abso- 
lute, it may deprive any conflicting natural title of plenary force, 
and yet leave to it a naturalis obligatio capable of acquiring efficacy 
by some machinery of Positive law; e.g. the Sc. Macedonianum, 
prohibiting money loans to a filiusfamilias without the sanction of 
his father, made them irrecoverable by action, and yet the courts 
recognized in the borrowing filiusfamilias a naturalis obligatio, which 
was capable of novation, Dig. 46, 2, 19, and a bar to recovery 
back (condictio indebiti) m case of actual repayment, Dig. 14, 6, 10. 

When Justinian revolutionized the law of intestate succession 
and made the right of succession depend on cognation instead of 
agnation, he made a corresponding change in the obligation of 
guardianship, which henceforth devolved on cognates instead of 
agnates, women as formerly, with the exception of mothers and 
grandmothers, being excluded from the office, Nov. 118, 5. 


114 [1. $$ 159-164, 


DE CAPITIS 


$ 159. Est autem capitis demi- 
nutio prioris status permutatio. 
eaque tribus modis accidit : nam 
aut maxima est capitis deminutio, 
aut minor, quam quidam mediam 
uocant, aut minima. 

$ 160. Maxima est capitis demi- 
nutio, cum .liquis simul et ciuita- 
tem et libertatem amittit; quae 
accidit incensis, qui ex forma cen- 
suali uenire iubentur; quod ius 


MINUTIONE. 


$ 159. Loss of status, in other 
words, civil degradation or diminu- 
tion of civil rights, is of three orders, 
greatest, minor or mediate, and 
least. 


$ 160, The greatest loss of status 
is the simultaneous loss of citizen- 
ship and freedom, which happens 
when those who have evaded in- 
scription on the censorial register are 


1. §§ 159-164.) 
I—— —-ex lege—|———qui 


p—— 

contra eam legem in urbe Roma 
do micilium babuerint ; item femi- 
nse, quae ex  senatusconsulto 
Claudiano ancillae fiunt eorum do- 
minorum, quibus inuitis et denun- 
tiantibus cum seruis eorum coierint. 


$ 161. Minor siue media est 
capitis deminut?o, cum ciuitas amit- 
titur, libertas retinetur; quod ac- 
cidit ei cui aqua et igni inter- 
dictum fuerit, 

$162. Minima est capitis demi- 
nutio, cum et ciuitas et libertas re- 
tintur, sed status hominis com- 
mutatur; quod accidit in his qui 
adoptantur, item in his quae co- 
emptionem faciunt, et in his qu? 
mancipio dantur quique ex manci- 
patione manumittuntur; adeo qui- 
dem, ut quotiens quisque mancipe- 
tur aut manumittatur, totiens capite 
deminuatur, 

$ 163. Nec solum maioribus 
(capitis) deminutionibus ius agna- 
tionis corrumpitur, sed etiam mini- 
ma; et ideo si ex duobus liberis al- 
terum pater emancipauerit, post 
obitum eius neuter alteri agnationis 
lure tutor esse poterit, 


$ 164. Cum autem ad agnatos 
tutela pertineat, non simul ad omnes 
pertinet, sed ad eos tantum qui 
proximo gradu sunt. 


$ 160. Ulpian also refers to 


DE CAPITIS MINUTIONE. 


115 


sold into slavery according to the 
form of census process, also under 
the law when persons in vio- 
lation of it make Rome their place 
of residence, and also under the 
Sc, Claudianum in case of per- 
sistent intercourse on the part 
of a free woman with another 
person's slave in spite of the pro- 
hibition and denunciation of the 
owner, 

§ 161. Minor or intermediate 
loss of status is loss of citizenship 
unaccompanied by loss of liberty, 
and is incident to interdiction of 
fire and water. 

§ 162. The least loss of status is 
descent in domestic rights with- 
out loss of citizenship or freedom, 
and occurs in adoption, coemption, 
noxal surrender, and manumission 
by mancipation, and so inseparably 
that each successive mancipation and 
manumission by a coemptionator, is 
a fall in domestic status, 





§ 163. Not only by the two 
greater losses of status are rights 
of agnation extinguished, but also 
by the least: accordingly, if one of 
two children is emancipated, the 
elder cannot on the father’s decease 
be guardian to the younger by right 
of agnation. 

§ 164. When agnates are entitled 
to be guardians, it is not all who 
are so entitled, but only those of 
the nearest degree. 


the penalty incurred by incensi 


(11, 11 cum incensus aliquis venierit) The lex, the name of which 
is now illegible, may possibly be the lex Aelia Sentia, which by one 
of ite provisions recalled into slavery dediticii, who resided in Rome 
or within a certain distance from it (§ 27). Gaius might further 
have mentioned, as causes reducing to slavery, surrender, by the 
pater patratus to a foreign state for an offence against international 
law, Livy, 5, 86, or evasion of military service (populus quum 
I2 


116 DE PERSONIS. [1. $$ 159-164. 


eum vendidit qui miles factus non est, Cic. Pro Caec. 84), or capture 
by the enemy, $ 129, or condemnation for a capital crime, which 
made the convict a slave of punishment (servus poenae, Inst. 
1, 16, 1), i.e. reduced him to penal servitude, or condemnation of 
a freedman for ingratitude towards his patron (libertus ingratus 
cirea patronum condemnatus, ibid.) whereupon he forfeited his 
freedom, or collusion of a freeman in consenting to be sold as a 
slave on condition of sharing the purchase-money (cum liber homo, 
major viginti annis, ad pretium participandum sese venundari passus 
est, Inst. 1, 8, 4). After the price had been paid, the vendor dis- 
appeated, the supposed slave recovered his liberty by a liberalis 
causa, and the purchaser was left without his slave and without his 
money. To check this fraud a statute enacted, that if the person sold 
was twenty years old at the time of the sale or partition of the price, 
he should really become the slave of the purchaser, Dig. 40, 12, 7. 
The libertus ingratus would exemplify a fall from the condition 
of libertinus to that of servus; any of the other instances might be 
a case of a fall from ingenuus to servus; the fall from ingenuus to 
libertinus would also by the definition (a descent from a higher to a 
lower grade in the category of liberty) be a case of capitis minutio 
maxima, and occurred by the operation of the Sc. Claudianum. 
A freewoman (ingenua) who had commerce with a slave with the 
consent of his proprietor procreated slaves without forfeiting her 
own freedom, § 84; she lost status, however, for she became the 
freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53. 
§ 161. Under the category of Civitas, as there are three classes, 
civis, latinus, peregrinus, so there are three possible degradations, 
the fall from civis to Latinus, instanced in the emigrant to a Latin 
colony, § 131; the fall from civis to peregrinus, instanced in the 
interdiction or deportation of a civis; and the fall from Latinus to 
peregrinus, instanced when the same events happened to Latinus. 
A. lapse from liber to servus was a dissolution of marriage, for 
servus was incapable of matrimony: a lapse from civis to pere- 
grinus was & dissolution of civil wedlock (connubium), for this 
could only subsist between cives; but if both parties corfsented, 
they might continue in gentile wedlock, Cod. 5, 17. "The confisca- 
tion of property or universal succession of the fiscus, which accom- 
panied greatest and minor loss of status, was not a necessary 
incident of capitis minutio (it did not happen when civis became 
Latinus by emigration; and an alien, which a citizen became by 


1.§§159-164.] | DE CAPITIS MINUTIONE. 117 


deportation, was capable of holding property), but was a special 
provision of the criminal code. 

The political elements of civitas, suffragium and honores, were 
forfeited by infamy (infamia) or loss of civic honour (existimatio) ; 
and hence arises the question whether infamia is to be regarded 
as a capitis minutio. 

Austen, in laying the bases of jurisprudence, has referred to the 
law of honour to illustrate the difference of positive law from all law 
not positive; but in Rome the law of honour, as the law of reli- 
gion in most modern states, was partially taken up into positive 
legislation. The public sentiments of esteem and disesteem, that is 
to say, were armed with political sanctions, and thus certain pro- 
ceedings were discouraged which were not otherwise prohibited by 
positive law, and the due application of these sanctions was the 
funetion of a special organ appointed by the legislator. This organ 
was the censor, who had both a discretionary power of branding a 
man with ignominy by an annotation against his name in the 
civic register (notatio, subscriptio censoria), and, as revisor of the 
lists of the senate, the knights, and the tribes, enforced the dis- 
abilities of infamy by removing the infamous person from any of 
those bodies. As the Comitia Centuriata, as well as the Comitia 
Tnbuta, had in later times been connected with the division into 
tribes, the tribeless man (aerarius) forfeited his vote and became 
incapable of military service, Livy, 7, 2. These graver conse- 
quences of infamy were not in the discretion of the censor, but 
governed by strict rules of consuetudinary law (jus moribus intro- 
duetum). Infamy was the consequence of condemnation in any 
criminal trial (publicum judicium) ; in certain civil actions founded 
on delict, theft, rapine, outrage, fraud; or on certain contracts, 
such as partnership, agency (mandatum), deposit; or on quasi 
contract, such as guardianship; or of insolvency (bona possessa, 
proscripta, vendita); or, without any judicial condemnation, was 
annexed to certain violations of the marriage laws, such as bigamy 
or the marriage of a widow before the termination of her year of 
mourning, and to the pursuit of certain professions, such as that of 
stage-player or gladiatot. In some of these latter instances con- 
suetudinary law, as above intimated, inflicted positive sanctions on 
acts that originally had only been prohibited by the sanctionlesa 
law of honour. In view of these consequences, infamia may at one 
time have been regarded as capitis minutio, Cicero pro Quinctio 

















118 | DE PERSONIS. [1. $$ 159—164. 


speaks of a suit involving existimatio as a causa capitis, and Tertul- 
lian, the father of the Church, who was noted for his knowledge of 
Roman law, and possibly was identical with the jurist of that name, 
of whom five fragments are preserved in the Digest, speaks of infa- 
mia as capitis minutio, De Spectaculis, 22. But the political nghts 
of civitas had ceased to be of importance under the emperors, and 
we are expressly told in the Digest that infamy did not constitute 
a status mutatio, Dig. 50, 16, 103, | 

Besides extinguishing the political or publicistic elements of 
civitas, infamia affected to a certain extent its private elements, 
both commercium and connubium; the former, as we shall see, in 
respect of the office of procurator, 4 § 124, and the latter in respect 
of the disabilities of celibacy under the lex Julia, which were not 
removed by marriage with an infamis. Both these classes of dis- 
ability had practically vanished even before they were abolished in 
the time of Justinian. 

This seems the proper place to notice certain inequalities of 
condition, analogous to the old distinctions of status, which grew 
up in the later ages of Rome, and some of which survived the fall 
of the Roman empire. From the establishment of the empire the 
army was caressed by each succeeding despot, and privileges of 
various kinds were so accumulated on the military service, that the 
relation of the soldiery to the rest of the world very much resem- 
bled the ancient relation of Romanus to peregrinus. The pre- 
eminence of the military caste was the result of elevation; other 
unprivileged castes were created by depression. As the new reli- 
gion grew to political power, zealous legislators were eager to 
promote its ascendency by the means of political sanctions. 
Pagans, Jews, heretics, apostates, protestants, papists, were suc- 
cessively frowned upon by the legislator, and for a long season 
subjected to incapacities and disabilities as great as, or greater 
than, those which weighed upon infamis: until by a change in 
political conceptions these inequalities of right have been again 
levelled and almost obliterated in most of the codes of modern 
Europe. See also the remarks on Colonatus, 3 § 145. 

§ 162. In the category of domestic position there are three 
classes, (1) sui juris, or paterfamilias and materfamilias; (2) filius- 
familias and filiafamilias; and (3) mancipium: but there are only 
two possible degradations, (1) from sui juris to filius- or filia- 
familias, which occurs in adrogation and the in manum conventio 


1. $$ 159~-164.] DE CAPITIS MINUTIONE. 119 


of a woman previously independent; and (2) from filius- or filia- 
familias to mancipium, which occurs in noxal surrender, in eman- 
cipation, in adoption as implying mancipation, and in the remanci- 
pation of a woman by her husband or the person who held her 
in manu in virtue of a fiduciary coemption. The descent from sui 
juris to mancipium cannot occur, because the only persons capable 
of passing into the condition of mancipium by the process of 
mancipation were filius- and filiafamilias and women in manu, i. e. 
persons already alieni juris. 

In the translation of the text, and in the exposition of capitis 
minutio, and particularly of the third and last kind, I have 
adopted the theory of Savigny as being the most tenable, and 
forming the most harmonious system of legal conceptions. I must 
now briefly notice an opposing theory, and the objections that may 
be raised against that of Savigny. Some expositors hold that 
capitis minutio minima did not necessarily and essentially involve 
any degradation, any downward step on the ladder of status, but 
might be merely a horizontal movement on the same platform, a 
transit from family to family, a disruption of the ties of agnation, 
a cessation of membership in a given civil group. This opinion 
is founded on the authority of Paulus, undeniably an eminent 
juris auctor, who defines the least diminution of head as follows: 
Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest, 
minor, least; as there are three things that we have, liberty, citi- 
zenship, family. The universal loss of freedom, citizenship, family, 
is the greatest capital diminution, loss of citizenship while liberty 
is retained is minor capital diminution; when liberty and citizen- 
&hip are retained, and family only is changed, there is the least 
capital diminution. Consistently with this definition Paulus 
affirms that the children of adrogatus suffer capitis minutio minima : 
Dig. 4, 5, 8. ‘The children who follow an adrogated parent 
suffer diminution of head, as they are dependent and have changed 
family.’ Here, then, if Paulus is right, we have capitis minutio 
without any degradation, any loss of rank; for the children of 
adrogatus have the same status of filiifamilias after their father's 
adrogation as they had before, although in a different family. The 
proposition, however, that the children of adrogatus suffer capitis 
minutio is not confirmed by any other jurist, and Savigny supposes 
that the doctrine was peculiar to Paulus, and was in fact inaccurate. 
Another objection to the theory of Savigny, though not so serious 





120 | ‘DE PERSONIS. [r. $$ 159—164. 


as the opposing authority of Paulus, is presented by the operation 
of in manum conventio. 

When an independent woman made a coemption she undoubtedly 
declined in status, as before coemption she was sui juris, and after 
eoemption she is filiafamilias. But a filiafamilias who made a 
eoemption apparently suffered no degradation: the definitive result 
of the coemption leaves her, as before, filiafamilias, and that, 
apparently, without having passed through any lower stage; for 
Gaius expressly says that the lex mancipii, or formula of mancipa- 
tion in coemption, was not calculated to reduce the woman to a 
servile condition, § 123. Gaius tells us, however, that coemption 
operates a capitis minutio, $ 162, without limiting the effect to the 
ease of a woman sui juris. The operation of coemption to produce 
capitis minutio is also mentioned by Ulpian, and again without any 
express limitation to the case of an independent woman: 11, 18. 
* There is least capital diminution when both franchise and freedom 
are unimpaired, and only position in household life is changed, as 
occurs in adoption and subjection to hand.’ If filiafamilias under- 
went capitis minutio when she made a coemption, her case dis- 
proves our theory that all capitis minutio requires degradation : but 
Savigny assumes that, though in these passages there is no express 
limitation to the case of independent women, yet this limitation 
must be understood; and there is nothing outrageous in this 
supposition. . 

While, however, these objections to the hypothesis of Savigny 
are doubtless serious, on the other hand they are compensated by 
legal facts which seem absolutely irreconcilable with the adverse 
hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gel- 
lius, 1,12. ‘As soon as a vestal virgin is selected and conducted 
to the shrine of Vesta and delivered to the pontifices, she instanta- 
neously, without emancipation and without capital diminution, 
is freed from parental power and acquires testamentary capacity. 
. . . . Moreover, in the commentary of Labeo on the Twelve Tables 
it is stated that a vestal virgin is neither heiress-at-law to any one 
who dies intestate nor, if she herself die intestate, leaves any heir- 
at-law, and that in this event her property lapses to the state.’ 
For Flamen Dialis, see 8 $ 114. If mere transit from a family 
and ceasing to belong to a given group of agnates constituted 
capitis minutio, and was its definition, then the vestal virgin must 
inevitably have suffered capitis minutio; the fact that she did not, 


1. §§ 159-164. | DE CAPITIS MINUTIONE. 121 


m spite of leaving her family and snapping the agnatic tie, is at 
once conceivable, on the supposition that there is no capitis minutio 
without degradation. 

Unless capitis minutio minima involved a downward step on the 
stair of status, it has no analogy to the other forms of capitis 
minutio, and it is not obvious why it should have the same generic 
appellation, or why it should be handled in the same department of 
the code. The rupture of the ties of agnation, extinguishing nghts 
of intestate succession, might be a loss, but it was not a loss from 
inferiority of privilege; it was a loss of an equal among equals; it 
resembled the loss which a husband incurred by divorce of his wife, 
or a father by emancipation of his son, or a devisee or heir by 
neglecting to accept a succession within the appointed period, 
2 § 164; none of which persons were said to undergo capitis 
minutio, because none of them suffered a reduction of the univer- 
sitas juris called status. 

On the whole, then, Savigny seems justified in considering the 
definition given by Paulus and his statement respecting the children 
of adrogatus as inexact. Paulus himeelf, in speaking of emancipa- 
tion, implies the true conditions of capitis minutio: Dig. 4, 5, 3. 
‘An emancipated son or other descendant clearly has his head 
diminished, as emancipation necessarily involves an imaginary 
descent into a servile condition.’ 

Although rupture of the ties, and forfeiture of the rights, or 
release from the duties, of agnation, were not the essence of capitis 
minutio minima, yet they were among its principal consequences. 
The eapite minutus lost his claim as suus heres at civil law, that is, 
his right to succeed to an intestate ascendent, or to be instituted 
heir in his will or formally disinherited. These effects of capitis 
minutio were, however, counteracted by jus praetorium or the legis- 
lation of the praetor. He also lost his right as legitimus heres at 
eivil law, that is, his right to succeed to an intestate collateral; and 
here the praetor only &o far interposed to assist the capite minutus, 
a5, in default of all persons entitled as agnates, to call him to the 
succession in the inferior order of cognates. The collateral suc- 
cessor was called legitimus heres (statutory successor) because his 
title was founded on the statutes of the Twelve Tables, which, in 
default of lineal descendants, called collateral agnates to the succes- 
sion. Subsequent statutes created certain quasi agnates or persons 
entitled to succeed in the same order as if they were agnates, who 


122 DE PERSONIS. [r. $$ 164 a-172. 


hence were also called legitimi heredes; e.g. children entitled to 
succeed to an intestate mother under the Sc. Orphitianum, and 
mothers entitled to succeed to intestate children under the Sc. Ter- 
tullianum. The effect of capitis minutio in extinguishing title to 
succeed was confined to legitimus heres created by the Twelve 
Tables, and did not extend to the legitimus heres created by these 
subsequent statutes, 

Besides the effects of capitis minutio which followed logically 
from its consisting in a degradation or fall in status, and from its 
involving elimination from a given family or a certain circle of 
agnates, it had certain other abnormal or arbitrary consequences— 
consequences, that is, which may have once been explicable on 
known maxims of the civil law, but which are now inexplicable, 
whose rationale had perhaps been lost even in the classical period, 
and is certainly now past conjecture. Such is the rule, that capitis 
minutio minima extinguished the debts of capite minutus. It is 
true that the injustice operated by this rule of civil law in the case 
of adrogatio was counteracted by the interposition of the praetor, 
3 § 84, but, as at civil law filiusfamilias, though incapable of rights, 
was capable of obligations, it is not obvious why even at civil law a 
man’s debts should have been cancelled by his degradation from the 
status of paterfamilias to that of filiusfamilias. 


DE LEGITIMA PATRONORUM TUTELA, 


$ 164a. 

(4 uersus in C legi nequeunt) 
| urbe| 
(2 wersus in C legi nequeunt) 
|—n urbe Roma——|—— 
itaque ut seru—est | 
sunt ——| 

(2 uersus in C legi nequeunt) 

| —esse-— | —simile——|——' 











| | 








u— —À 


$ 165. Ex eadem lege xii tabu- 
larum libertéarum et inpuberum 
libertorum tutela ad patronos libe- 
rosque eorum pertinet. quae et ipsa 
tutela legitima uocatur, non quia 
nominatim ea lege de hac tutela 
cauetur, sed quia proinde accepta 
est per interpretationem, atque si 


§ 165. The same statute of the 
Twelve Tables assigns the guardian- 
ship of freedmen below the age of 
puberty to the patron and the 
patron's children,and this guardian- 
ship, like that of agnates, is called 
statutory guardianship, not that it 
is anywhere expressly enacted in 


1. §§ 164 a-172.] 


uerbis legis tntroducta esset. eo 
enim ipso, quod hereditates liber- 
torum libertarumque, si inéestati 
decessissent, iusserat lex ad patro- 
noe liberosue eorum pertinere,credi- 
derunt ueteres uoluisse legem etiam 
tutelas ad eos pertinere, quia et 
agnatos quos ad hereditatem uoca- 
uit, eosdem et tutores esse lusserat. 


$166. Exemplo patronorum re- 
ceptae (sunt et aliae tutelae, quae et 
tpeae legitimae wocantwr. nam st 


quis filium nepotemue ex filio et dein- 

ceps inpuberes. aut filiam neptem- 
ue ue ex filio et deinceps tam puberes 
quam tnpuberes alteri ea lege man- 
cptodederit,ut sibiremanciparentur, 
remancipatosque manumisenit, legi- 
timus eorum tutor erit.) 


$ 166 a. [Dx FIDVCIARIA TUTELA.] 
Suntet aliae tutelae, quae fiduciariae 
uocantur, id est quae ideo nobis 
ccnpetunt, quia liberum caput man- 
cipatum nobis uel a parente uel a 
coemptionatore manumiserimus. 


$167. Sed Latinarum et Lati- 
norum inpuberum (wtela non omni 
modo ad manumissores eorum perti- 
net, sed ad eos quorum ante manu- 
missionem (ex ture Quiritium 
fuerunt; unde si ancilla) ex iure 
Quiritium tua sit, in bonis mea, & 
me quidem solo, non etiam a te 
manumissa, Latina fieri potest, et 
bona eius ad me pertinent, sed eius 
tutela tibi conpetit; nam ita lege 
Iunia cauetur ; itaque si ab eo cuius 
et in bonis et ex lure Quiritium 
ancilla fuerit, facta sit Latina, ad 


DE FIDUCIARIA TUTELA. 


123 


that body of statutes, but because 
their interpretation by the jurists 
has procured for it as much recep- 
tion as it could have obtained from 
express enactment ; for the fact that 
the succession of a freedman or 
freedwoman, when they die intes- 
tate, was given by the legislator to 
the patron and patron’s children, 
was deemed a proof of his intention 
to give them the wardship, because 
when he was dealing with agnates 
he had coupled wardship with suc- 
cession. 

$ 166. The analogy of the patron 
guardian led in its turn to the 
establishment of other guardian- 
ships also called statutory. Thus 
when a person mancipates to an- 
other a son or grandson through 
& son, who are below the age of 
puberty, or a daughter or grand- 
daughter through a son of what- 
ever age they may be, on condition 
that they are to be re-mancipated 
to him, he becomes their statutory 
guardian on manumitting them 
after re-mancipation. 

$ 166 a. ConcERNING Fipuciary 
GUARDIANSHIP, 

But there are other kinds of 
guardianship, called fiduciary, which 
arise when a free person has been 
mancipated by his parent or co- 
emptionator to an alienee and 
manumitted by the latter. 

§ 167. The guardianship of Latins, 
male or female, below the age of 
puberty, does not necessarily de- 
volve on their manumitter, but on 
whoever before manumission was 
their quiritary owner. Accordingly, 
a female slave belonging to you as 
quiritary owner, to me as bonitary 
owner, if manumitted by me without 
your joining in the manumission, 
becomes a Latin, and her succession 
devolves on me, her guardianship 
on you, by the enactment of the lex 
Junia. If, on manumission by one 


124 DE PERSONIS. 


eundem et bona et tutela pertinent. 


(1. $$ 164 a-172. 


who combines the characters of 
bonitary and quiritary owner, she 
becomes & Latin, he becomes both 
her successor and her guardian. 


DE CESSICIA TUTELA. 


$ 168. Agnatis et patronis et 
liberorum capitum manumissoribus 
permissum est feminarum tutelam 
ali in iure cedere; pupillorum 
autem tutelam non est permissum 
cedere, quia non uidetur onerosa, 
cum tempore pubertatis finiatur. 


$ 169. Is autem cui ceditur 
tutela, cessicius tutor uocatur; 


$ 170. Quo mortuo aut capite 
deminuto reuertitur ad eum tuto- 
rem tutela qui cessit ; ipse quoque 
qui cessit si mortuus aut capite 
deminutus sit, a cessicto tutela dis- 
cedit et reuertitur ad eum qui post 
eum qui cesseiat, secundum gradum 
in ea tutela habuerit. 

§ 171. Sed quantum ad agnatos 
pertinet, nihil hoc tempore de ces- 
Bicia tutela quaeritur, cum agnato- 
rum tutelae in feminis lege Claudia 
sublatae sint. 


$ 172. Sed fiduciarios quoque 
quidam putawerunt cedendae tute- 
lae ius non habere, cum ipsi se 
oneri subiecerint. quod etsi pla- 
ceat, in parente tamen qui filiam 
neptemue aut proneptem alteri ea 
lege mancipio dedit, ut sibi reman- 
ciparetur, remancipatamque manu- 
misit, idem dici non debet, cum is 
et legitimus tutor habeatur, et non 
minus huic quam patronis honor 
praestandus eit. 


$168. Statutory guardians, whe- 
ther agnates or patrons, are per-' 
mitted to transfer the guardianship 
of a female ward by surrender be- 
fore a magistrate; the guardianship 
of a male ward is not allowed to be 
transferred, because it is not con- 
sidered onerous, being terminated 
by the ward’s attaining the age of 
puberty. 

§ 169. The surrenderee of a 
guardianship is called a cessionary 
guardian. 

§ 170. On his death or loss of 
status the guardianship reverts to 
the surrenderor, and on the surren- 
deror's death or loss of status it is 
devested from the cessionary and 
devolves on the person next entitled 
after the surrenderor. 


$ 171. As far, however, as ag- 
nates are concerned, in the present 
day there is no such thing as ces- 
sionary guardianship, for agnatic 
guardianship over female wards was 
abolished by the lex Claudia. 

$172. Fiduciary guardians, ac- 
cording to some, are also disabled 
from transferring their guardian- 
ship, having voluntarily undertaken 
the burden; but although this is 
the better opinion, yet a parent who 
has mancipated a daughter, grand- 
daughter, or great-granddaughter, 
with a condition of remancipation to 
himself. and manumitted her after 
remancipation, should be excepted 
from the rule, for he is ranked with 
statutory guardians, and has the 
same privilege as the patron of a 
manumitted slave. 


1.§§173-184.] DE PETENDO ALIO TUTORE. 


§ 1644. It is probable that at the beginning of the lacuna 
Gaius made mention of the statutory guardianship of the Gentiles, 
and that this is the passage on the subject referred to in 3, 17. 

§166¢. Cf. §§ 114, 115. 

§ 167. It seems anomalous that a Latin, i.e. a non-civis, should 
have been a subject of wardship: for as tutela is an institute of jus 
civile (§ 142, commentary), i. e. jus civium, we should have expected 
that, as in the case of patria potestas, both pater and filius must bé 
eives Romani, $ 128, so here both parties, the ward as. well as the 
guardian, must of necessity be cives Romani. The anomaly, how- 
ever, was expressly enacted by the lex Junia: which further de- 
parted from the law of the Twelve Tables by separating the 
guardianship from the right of succession; for it gave the guardian- 
ship to the quiritary owner, but the right of succession to the boni- 
tary owner. Latinus was not only capable of being a ward, but 
also of being a guardian, Fragmenta Vaticana, 193 ; that is, though 
he was incapable of being a testamentary guardian, $ 28, he could 
be made a tutor dativus, or appointed by a magistrate, § 185. This 
magisterial disregard of the spirit of the lex Junia is similar to the 
praetor’s behaviour in respect of another of its dispositions. The 
law disabled Latins from taking as devisees or legatees under a 
will; the praetor allowed them to take by means of a declaration of 
trast, 1 § 24. 

§ 168. In English jurisprudence guardianship is said not to be 
capable of assignment or transfer, because it is not a right but 
a duty. 


125 


DE PETENDO ALIO TUTORE. 


$ 173. Praeterea senatusconsulto 
mulieribus permissum est in absen- 
tis tutoris locum alium petere ; quo 
petito prior desinit; nec interest 
quam longe absit is tutor. 


$174. Sed excipitur, ne in ab- 
sentis patroni locum liceat libertae 
tutorem petere. 


$175. Patroni autem loco ha- 
bemus etiam parentem qui ex eo, 
quod ipse sibi remancipatam filiam 
neptemue aut proneptem manu- 


$ 173. Moreover, a decree of the 
senate permits female wards to de- 
mand a substitute in the place of an 
absent guardian, who is thus super- 
seded : and the distance of his resi- 
dence from her domicil [provided it 
amounts to absence] is immaterial. 

$ 174. But an exception is made 
in favour of an absent patron, who 
cannot be superseded on the appli- 
cation of a freed woman. 

$175. Ranked with patrons is 
the parent who by mancipation, re- 
mancipation, and manumission of a 


daughter, granddaugbter, or great- 


126 


misit, legitimam tutelam nactus est. 
(sed) huius quidem liberi fiduciarti 
tutoris loco numerantur; patroni 
autem liber? eandem tutelam adi- 
piscuntur, quam et pater eorum 
habuit. 

$176. Sed aliquando etiam in 
patroni absentis locum permittitur 
tutorem petere, ueluti ad heredi- 
tatem adeundam. 


§ 177. Idem senatus censuit et 
in persona pupilli patroni file. 


$ 178. Nam et lege Iulia de mari- 
tandis ordinibus ei quae in legitima 
tutela pupilli sit permittitur dotis 
constituendae gratia a praetore 
urbano tutorem petere. 


$ 179. Sane patroni filius etiamsi 
inpubes sit, libertae efficietur tutor, 
quamquam in nulla re auctor fieri 
potest, cum ipsi nihil permissum 
sit sine tutoris auctoritate agere. 


$ 180. Item si qua in tutela legi- 
tima furiosi aut muti sit, permitti- 
tur ei senatusconsulto dotis con- 
stituendae gratia tutorem petere. 


$181. Quibus casibus saluam 
manere tutelam patrono patronique 
filio manifestum est. 

$ 182. Praeterea senatus censuit, 
ut si tutor pupilli pupillaeue su- 
spectus a tutela remotus sit, siue 
ex iusta causa fuerit excusatus, in 
locum eius alius tutor detur, quo 
facto prior tutor amittit tutelam. 


DE PERSONIS. 


[x $$ 173-184. 


granddaughter, has become her sta- 
tutory guardian. His sona only 
rank as fiduciary guardians, unlike 
& patron’s sons, who succeed to the 
eame form of guardianship as vested 
in their father. 

$ 176. For a special and limited 
purpose the senate permits even a 
patron in his absence to be super- 
seded by a substitute; for instance, 
to authorize the acceptance of an 
inheritance. | 

$ 177. The senatusconsult gives 
similar permission when a patron's 
son is himself a ward. 

§ 178. For even before the sena- 
tusconsult the lex Julia regulating 
the marriages of the various orders 
permitted a woman whose statu- 
tory guardian, her patron’s son, 
was himself a ward, to apply to 
the praetor of the city to sub- 
stitute a guardian for the pur- 
pose of effecting a settlement of her 
dower. 

§ 179. For a patron’s son even 
before the age of puberty is a freed- 
woman’s guardian, although unable 
to authorize any proceeding, being 
himself disabled from acting with- 
out his guardian’s authorization. 

$180. Also, & woman whose 
statutory guardian is a lunatic or 
dumb is permitted by the senatus- 
consult, for the purpose of settling 
her dower, to apply for a substitu- 
tive guardian. 

$ 181. In which cases the con- 
tinued guardianship of the patron 
or patron's son is undisputed. 

$ 182. The senate further decreed 
that if the guardian of a male or 
female ward is suspected .of mis- 
conduct and removed from office, or 
if he alleges valid grounds for de- 
clining to act and is relieved of his 
functions, a substitute shall be ap- 
pointed by the magistrate, and on 
his appointment the office of the 
former guardian shall determine, 





1. § 185-188.] DE ATILIANO TUTORE ET JULIOTITIANO. 


$183. Haec omnia similiter et 
Romae et in prouinciis obseruantur, 
scilicet (ut Komae a praetore) et 
in prouinciis à praeside prouinciae 


tutor peti debeat. 


$184. Olim cum legis actiones 
in usu erant, etiam ex illa causa 
tutor dabatur, si inter tutorem et 
mulierem pupillumwe lege agendum 
erat; nam quia ipse tutor in re sua 
auctor esse non poterat, alius daba- 
tur, quo auctore legis actio pera- 
geretur; qui dicebatur praetorius 
tutor, quia a praetore urbano da- 
batur. sed post sublatas legis ac- 
tiones quidam putant hanc speciem 
dandi tutoris in usu esse destisse, 
alis autem placet adhuc in usu 
esse, si legitimo iudicio agatur. 


127 


$183. These rules are in force 
both in Rome and in the provinces, 
butin Rome application for the ap- 
pointment of a tutor must be made 
to the praetor; in the provinces, to 
the governor of the province. 

$ 184. During the era of litiga- 
tion by statute-process [4 $ 10] 
another cause of appointing a sub- 
stitute was theimminence of statute- 
process between the guardian and 
the woman or ward; for as the 
guardian could not give his autho- 
rity in respect of his own suit, 
another guardian was appointed to 
authorize the proceedings in the 
action, who was called a praetorian 
guardian, because he was appointed 
by the praetor of the city. But 
some hold that since the abolition 
of statute process this mode of ap- 
pointing a guardian ceased to be 
used, others maintain that it is still 
the practice on the occasion of a 
statutory suit. (4 $ 103.) 


$179. The law was changed by Justinian, who enacted that no 


one could become guardian who had not attained his majority, 
1. e. completed twenty-five years of age, Cod. 5, 30, 5. 

§ 182. Cf. Inst. Just. 1, 25, 26. 

$183. The ambiguity of the Latin language leaves it doubtful 
whether in the foregoing paragraphs, $6 178, 176, 180, 182, Gaius 
refers to one or several senatusconsults. From D. 26, 1, 17, how- 
ever, i& appears that, complura senatusconsulta facta sunt ut in 
locum furiosi et muti et surdi tutoris alii tutores dentur: i.e. the 
subject often occupied the attention of the senate. The reason was 
that the lex Atilia, presently mentioned, had received,.after the 
wont of the ancient juriste, a strictly literal interpretation, and was 
not deemed to authorize the substitution of a guardian when the 
existing guardian was incapacitated. 


DE ATILIANO TUTORE, ET EO QUI EX LEGE IULIA ET TITIA DATUR. 


$ 185. Si cui nullus omnino tutor $185. Failing every other form 
sit, ei datur in urbe Roma ex lege of guardian, at Rome a guardian is 
Atilia a praetore urbano et maiore appointed under the lex Atilia by 


128 


parte tribunorum plebis, qui Atili- 
anus tutor uocatur; in prouinciis 
uero a praesidibus prouinciarum 
(ex) lege Iulia et Titia. 


§ 186. Et ideo si cui testamento 
tutor sub condicione aut ex die 
certo datus sit, quamdiu condicio 
aut dies pendet, tutor dari potest ; 
item si pure datus fuerit, quamdiu 
nemo heres existat, tamdiu ex his 
legibus tutor petendus est; qui 
desinit tutor esse, posteaquam ali- 
quis ex testamento tutor esse coe- 


perit. 


$187. Ab hostibus quoque tu- 
tore capto ex his legibus tutor peti 
debet; qui desinit tutor esse, si is 
qui captus est, in ciuitatem reuer- 
sus fuerit; nam reuersus recipit tu- 
telam iure postliminii. 


$ 188. Ex his apparet quot sint 
species tutelarum. si uero quae- 
ramus in quot genera hae species 
diducantur, longa erit disputatio; 
nam de ea re ualde ueteres dubi- 
tauerunt, nosque diligentius hunc 
tractatum executi sumus et in edicti 
interpretatione et in his libris quos 
eX Q. Mucio fecimus. hoc tantisper 
sufficit &dmonuisse, quod quidam 
quinque genera esse dixerunt, ut 
Q. Mucius; alti tria, ut Ser. Sul- 
picius ; alti duo, ut Labeo ; alü tot 
genera esse crediderunt, quot etiam 
Bpecies essent. 


DE PERSONIS. 


(x. $$ 185-188. 


the praetor of the city and the 
major part of the tribunes of the 
people, called an Atilian guardian : 
in the provinces, a guardian is ap- 
pointed by the president of the pro- 
vince under the lex Julia and Titia. 

§ 186. Accordingly, on the ap- 
pointment of a testamentary guar- 
dian subject to a condition, or on an 
appointment limited to take effect 
after a certain time, during the 
pendency of the condition and be- 
fore the expiration of the term, a 
substitute is appointed by these 
magistrates ; also, when the appoint- 
ment of a testamentary guardian is 
not subject to a condition, so long 
as the succession has not vested, a 
temporary guardian may be ob- 
tained under those statutes, whose 
office will determine as soon as 
the testamentary guardianship has 
vested. 

$187. On the hostile capture of 
a guardian the same statutes regu- 
late the appointment of a substitute 
to continue in office until the return 
of the captive ; for if the captive 
returns he recovers the guardianship 
in virtue of his rehabilitation. 

$ 188. The foregoing statement 
shows the various forms of guar- 
dian: the question of the number 
of orders to which these forms may 
be reduced involves a long discus- 
sion, for it is a point on which the 
ancient jurists differed greatly ; and 
as I have examined it at length, 
both in my interpretation of the 
edict and in my commentary on 
Quintus Mucius, for the present 
occasion it may suffice to observe 
that some, as Quintus Mucius, make 
five orders ; others, as Servius Sul- 


| picius, three ; others, as Labeo, two ; 


others make as many orders as there 
are forms of guardian. 


$ 188. In the time of Justinian there were three forms of guar- 
dian,—testamentary, or appointed by will; statutory, or prescribed 


1. §§ 189-193.] 


DE MULIERUM TUTELA. 


“129 


by the law in case of intestacy; and magisterial (dativus), or ap- 
pointed by the magistrate, in default of a testamentary or statutory 
guardian. ‘The other forms of guardian had become obsolete in 
consequence of the changes in legislation. 


DE MULIERUM TUTELA, 


$189. Sed inpuderes quidem in 
tutela eese omnium ciuitatium iure 
contingit ; quia id naturali rationi 
conueniens est, ut is qui perfectae 
setatis non sit, alterius tutela rega- 
tur. nec fere ulla ciuitas est in qua 
non licet parentibus liberis suis in- 
puberibus £estamen£o tutorem dare ; 
quamuis, ut supra diximus, soli 
ciues Romani uideantur liberos suos 
in potestate habere. 


$190. Feminas uero perfectae 
aetatis in tutela esse fere nulla pre- 
tiosa ratio suasisse uidetur; nam 
quae uulgo creditur, quia leuitate 
animi plerumque decipiuntwr et ae- 
quum erat eas tutorum auctoritate 


regi, magis speciosa uidetur quam. 


uera; mulieres enim quae perfectae 
aetatis sunt, ipsae sibi negotia trac- 
tant, et in quibusdam causis dicis 
gratia tutor interponit auctoritatem 
suam; sgepe etiam inuitus auctor 
fieri a praetore cogitur. 


$ 191. Unde cum tutore nullum 

ex tutela iudicium mulieri datur; 

af ubi pupillorum pupillarumue ne- 

gotia tutores tractant, ei post puber- 

dem tutelae iudicio rationem red- 
t. 


$192. Sane patronorum et pa- 
rentum legitimae tutelae uim ali- 


K 


$ 189. The wardship of children 
under the age of puberty is pre- 
scribed by every legislation, for it 
is a dictate of natural reason that 
persons of immature years should 
be under foreign guidance and con- 
trol, and almost all states permit a 
perent to nominate a testamentary 
guardian for his children ander the 
age of puberty, though, as we have 
before stated, only citizens of Rome 
appear to beinvested with parental 
power. 

$190. But why women of ma- 
ture years should continue in ward- 
ship there appears to be no valid 
reason; for the common allegation, 
that their weakness of judgment 
exposes them to the designs of the 
fraudulent, and that humanity re- 
quires them to be put under the 
control and authority of & guar- 
dian, seems rather specious than 
true, for women above the age of 
puberty administer their own pro- 
perty, and it is & mere formality 
that in some circumstances their 
guardian interposes his assent; in 
many others, if he refuses, he may be 
compelled to withdraw his opposi- 
tion by an appeal to the praetor. 

$191. Accordingly, a guardian 
is not suable on account of admi- 
nistration by a woman in wardship ; 
whereas the guardian of an infant, 
male or female, is liable to be sued 
on account of his administration 
as Soon as the ward attains to the 
age of puberty. 

$192. The statutory guardian- 
ship of patrons and parents is not 


130 


quam habere intelleguntur eo quod 
hi neque ad testamentum faciendum 
neque ad res mancipti alienandas 
neque ad obligationes suscipiendas 
auctores fieri coguntur, praeterquam 
si magna causa alienandarum rerum 
mancipi? obligationisque suscipien- 
dae interueniat; eaque omnia ip- 
sorum causa constituta sunt, ut, 
quia ad eos intestatarum mortuarum 
hereditates pertinent, neque per 
testamentum excludantur ab here- 
ditate, neque alienatis pretiosioribus 
rebus sueceptoque aere alieno minus 
locuples ad eos hereditas perueniat. 
. $193. Apud peregrinos non si- 
militer ut apud nos in tutela sunt 
feminae; sed tamen plerumque 
quasi in tutela sunt; ut ecce lex 
BitAynorum, si quid mulier contra- 
hat, maritum auctorem esse iubet 
aut filium eius puberem, 


: DE PERSONIS, 


[1. $$ 189—193. 


purely illusory, as they cannot be 
compelled to give their sanction to 
a will or to the alienation of man- 
cipable property, or to the comple- 
tion of a contract, unless there sre 
very weighty reasons for the con- 
tract or the alienation; but this 
rule is in their own interest as 
heirs in intestacy, and is designed 
to prevent their loss of the estate 
by testamentary disposition, or the 
diminution of its value by debt or 
by alienation of & considerable por- 
tion, 


$ 193. In other countries, though 
not under the same tutelage as at 
Rome, women are generally subject 
to a quasi tutelage: for instance, 
the Jaw of Bithynia requires the 
contract of a woman to be sanc- 
tioned by her husband or by a sen 
above the age of puberty. 


As women were capable of administration, the functions of the 


guardian, which in the case of infants were either administrative 
or sanctionative, in the case of women were confined to sanctioning. 
Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem 
interponunt: mulierum autem tutores auctoritatem dumtaxat inter- 
ponunt, Ulp. 11, 25. (Cf. 2, 80-85, 122.) It is transparent that 
the wardship of women after the years of puberty was not designed 
to protect their own interests, but those of their heirs apparent, 
their agnates. Originally the authorization of the guardian was 
not suffieient to validate the will of an independent woman: it 
was necessary that she should first break the ties of agnation, and 
separate from her family by means of a coemption (with her 
guardian’s sanction) and subsequent remancipation and manu- 
mission. She then, with the sanction of the manumissor, in his 
character of fiduciary guardian, could make a valid will. In the 
time of Gaius, Hadrian having abolished the necessity of coemp- 
tion, to make a valid will an independent woman only required the 
sanction of her guardian, 2 § 112. 

When a woman was liberated from the control of her guardian, 
the simplest course would have been to declare her dispositions valid 


1.$$189-193.] DE MULIERUM TUTELA. 131 


without his sanction—to declare her no longer a ward, But with 
characteristic conservatism of forms, the Roman legislator, to avoid 
the open change, declared the auctoritas still necessary, but made it 
compulsory instead of voluntary—gave the ward a power of extort- 
mg it from the guardian. So the act whereby a testamentary heir 
accepts an inheritance was originally absolutely voluntary: but 
when trusts (fidei commissa) were introduced, and the heir as trustee 
or fiduciarius by groundlessly refusing to make the necessary 
aditio, which in this case was the merest form, could produce 
intestacy, and thus deprive the beneficiary, fideicommissarius, or 
cestui que trust of the provision destined for him by the bounty 
of the testator: instead of declaring the aditio of the heres unneces- 
gary to the acquisition of the fortune by the fideicommissarius ; or 
that in such a case the beneficiary should be deemed to be a direct 
substitutus of the heres; or that the vexatious refusal of the heres 
should be deemed to be an aditio and restitutio; the legislator 
ordained that the heres should be compelled to make aditio in order 
to complete the title, 2 $ 258. Again, the terms of the security 
given by the guardian (rem pupilli salvam fore) against dilapi- 
dation of the estate of the ward made the responsibility of the 
guardian depend on his actual administration ; so that he was not 
responsible if the estate went to ruin in consequence of his total 
abetention from the performance of his duties, To protect the ward 
against this contingency, instead of altering the formula of the 
satisdatio, and making the liability of the guardian depend on his 
appointment and not on his acting; the legislator compelled him 
to proceed to some act of guardianship, in order to bring him under 
the unchanged terms of his security. In all these and other cases 
a compulsory act was substituted for a voluntary act for the sake of 
giving the law an outward appearance of antiquity. At last, at 
some period before the epoch of Justinian, the tutelage of women 
above the age of puberty had ceased in form as well as in substance, | 
and'no sanction of a guardian, whether voluntary or compulsory, 
was required, Ihering. 

It is to be observed, that as women were gradually enfranchised 
from their disabilities, they also forfeited some of their original 
privileges. It was a rule of the administration of justice that 
while error of fact might be pleaded to defend a person against the 
consequences of his own acts or omissions, no one should be allowed 
to allege an error of law, Dig. 22, 6, 9, An exception however was 

X 2 


132 DE PERSONIS. [z. 8$ 194-196. 


made in favour of minors, of soldiers, of the utterly uneducated 
(rustici) and of women. Against their ignorance of rules of law, 
particularly those rules of Civil law which are not, like rules of 
Gentile law, the almost self-evident dictates of reason and common 
sense, they were relieved by a branch of the praetor's equitable 
jurisdiction, called integri restitutio, a power of cancellation and 
rescission, in cases of manifest collision between law and equity. 
This privilege of women was partially abrogated by a constitution 
of the Emperor Leo, a.p. 469; Cod. 1, 18,13. ‘To prevent the 
indiseriminate revoeation by women of all their contracts on the 
ground of omission or error, be it enacted, that ignorance of law, 
whereby a woman is damnified in her right or property, shall only 
be a title to relief in those cases where women have heretofore 
been expressly excepted from the provisions of any statute. 


QUIBUS MODIS TUTELA FINIATUR. 





$194. Tutela autem liberantur 
ingenuae quidem trium (JUberorum 
ture, libertinae uero quattuor, st in 
patroni) liberorumue eius legitima 
tutela sint; nam ceterae quae al- 
terius generis tutores habent, [uelut 
Atilianos aut fiduciarios] trium 
liberorum | iure tutela liberantur. 


. $ 195. Potest autem pluribus 
modis libertina alterius generis (tv 
torem) habere, ueluti si a femina 
manumissa sit; tunc enim e lege 
Atilia petere debet tutorem, uel in 
prouinc(:is e lege Iul)ia et Titia ; 
nam in patronae tutela esse non 
potest. 

$ 195a. Itemsi (a) masculo manu- 
missa (fuerit) et auctore eo coemp- 
tionem fecerit, deinde remancipata 
et manumissa sit, patronum quidem 
habere tutorem desinit, incipit au- 
tem habere eum tutorem a quo 
manumissa est, qui fiduciarius 
dicitur, 

$ 195 b. Item si patronus eiwsue 


$194. Guardianship is terminated 
for a freeborn woman by title of be- 
ing mother of three children, for a 
freedwoman under statutory guar- 
dianship by being motherof fourchil- 
dren: those who have other kinds 
of guardians, Átilian, for instance, 
are liberated from wardship by ac- 
quiring the title of being mothers 
of three children. 

$ 195. There are varipus modes 
by which a freedwoman may have 
the other kinds of guardian: for 
instance, on manumission by a 
woman, when she must request a 
guardian under the lex Atilia, or 
in the provinces under the lex 
Julia and Titia, as a female patron 
cannot be guardian to a freedman 
or freedwoman : also on manumis- 
sion by a male, if with his sanction 
she makes a coemption, and then 
is remancipated and manumitted, 
for the patron then ceases to be 
guardian, and is replaced by the 
second manumitter, who is called 
& fiduciary guardian. Also on the 


1. § 194~-196.] QUIBUS MODIS TUTELA FINIATUR, 


filius in adoptionem se dedit, debet 
liberta e lege Atilia uel Iulia et Titia 
tutorem petere. 

$ 195 c. Similiter ex isdem leg- 
ibus petere debet, tutorem liberta, si 
patronus decesserit nec ullum uirilis 
sexus liberorum in familia reli- 
querit, 

$ 196. Masculi autem cum puberes 
esse coeperint, tutela liberantur. 
Puberem autem Sabinus quidem et 
Cassius ceterique nostri praecep- 
tores eum esse putan?, qui habitu 
corporis pubertatem ostendit, id 
est eum qui generare potest; sed in 
his qui pubescere non possunt, 
quales sunt spadones, eam aetatem 
esse spectandam, cuius aetatis pu- 
beres fiunt; sed diuersae scholae 
auctores annis putant pubertatem 
aestimandam, id est eum puberem 
esse existimant gui | XIII annos 


expleutt. 





133 


adrogation of her patron or his son 
she must demand a guardian under . 
the lex Atilia or Titia, and in com- 
pliance with the same laws she 
must demand a guardian on the de- 
cease of her patron without leaving 
any son in the family. 


§ 196. For males the attainment 
of the age of puberty is a release 
from wardship. Puberty, accord- 
ing to Sabinus and Cassius and the 
other authorities of my school, de- 
pends on physical development, that 
18, on capacity of generation; or in 
case of impotence on the comple- 
tion of [eighteen years, or] the age 
which even in the latest constitu- 
tions usually implies capacity of 
generation. The other school hold 
that puberty is to be exclusively 
measured by age, that is to say, 
that it should always be deemed to 
be attained on the completion by & 
male of his fourteenth year. 


$ 196. All jurists agreed that in the case of the spado (natural 


impotence) some fixed date must be assumed as the conventional 
period of puberty. The Sabinian rule appears to be preserved in a 
passage of Paulus: Spadones eo tempore testamentum facere pos- 
sunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4a, 2. 
Fourteen was assumed to be the average age of puberty; but it 
was too early, even in the southern climes subject to Roman legis- 
lation, for & minority of constitutions which advance more slowly 
to maturity. Eightcen was supposed to be sufficiently postponed 
to include most of these cases of retarded development. "We have 
already, in treating of adrogation, § 106, commentary, met with 
the phrase, plena pubertas, denoting eighteen years of age. We 
may suspect that in Paulus we should read, quo plerique pubescunt 
qui tardius pubescunt; and in Gaius, cujus aetatis puberes fiunt 
qui tardius puberes fiunt; the similarity of ending having caused 
the omission of the clauses by the transcribers. 

This paragraph is the first which refers to the existence of rival 
schools among the Roman juris auctores, to which we shall find 
frequent allusions in the remainder of the treatise. This divergence 


134 0l DE PERSONIS. [r.$$ 194-196. 


of the schools dates from the first elevation of the jurist to a 
species of public functionary, namely, from the reign of Augustus, 
in whose time, as we have seen, § 7, commentary, certain jurists 
began to be invested by imperial diploma with a quasi legislative 
authority. In his reign the rival oracles were Antistius Labeo and 
Caius Ateius Capito: Hi duo primum veluti diversas sectas fece- 
runt, Dig. 1, 2, 47. ‘ The first founders of the two opposing sects.’ 
From Labeo’s works there are 68 extracts in the Digest, and 
Labeo is cited as an authority in the extracts from other jurists 
oftener than any one else except Salvius Julianus. From Sem- 
pronius Proculus, a disciple of Labeo, and of whom 87 fragments 
are preserved in the Digest, the school derived its name of Pro- 
culiani, Other noted jurists of this school were Pegasus, in the 
time of Vespasian; Celsus, in the time of Domitian, who gave 
rise to the proverb, responsio Celsina, a discourteous answer, and 
of whom 141 fragments are preserved; and Neratius, of whom 
64 fragments are preserved. To the other school belonged 
Masurius Sabinus, who flourished under Nero, and from whom 
the sect were called Sabiniani. To the same school belonged Caius 
Cassius Longinus, who flourished under Nero and Vespasian, and 
from whom the sect are sometimes called Cassiani: Javolenus 
Priscus, of whom 206 fragments are preserved: Salvius Julianus, 
who reduced the praetorian edict to a permanent form in the reign 
of Hadrian, and of whom 456 fragments are preserved: Pomponius, 
of whom 578 fragments are preserved: Sextus Caecilius Africanus, 
celebrated for his obscurity, co that Africani lex in the language of 
lawyers meant lex difficilis, of whom 181 fragments are preserved : 
and, lastly, our author, Gaius, who flourished under Hadrian, 
Antoninug Pius, and Marcus Aurelius, and from whose writings 
535 extracte are to be found in the Digest. 

If we now inquire whether this divergence of schools waa based 
on any difference of principle, the answer is, No: on none, at least, 
that modern commentators have succeeded in discovering: it was 
merely a difference on a multitude of isolated points of detail. We 
are told indeed that the founders were men of dissimilar characters 
and intellectual dispositions: that Labeo was characterized by bold- 
ness of logic and a spirit of innovation; while Capito rested on 
tradition and authority, and inclined to conservatism, Dig. 1, 2, 47; 
but it is altogether impossible to trace their opposing tendencies in 
the writings of their successors: and we must suppose that the 


L$$194-196.] SCHOLAE JURISPRUDENTIUM. 135 


intellectual impulse given by Labeo was communicated to the fol- 
lowers of both schools of jurisprudence. But though, as we have 
stated, no difference of principle was involved, each school was 
accustomed. to follow its leaders with much servility; and it is 
quite an exception to find, on a certain question, Cassius, a member 
of the Sabinian school, following the opinion of Labeo; while Pro- 
culus, who gave his name to Labeo’s school, preferred the opinion 
of Ofilius, the teacher of Capito, 8 § 140. Controversies between 
the two schools are referred to by Gaius in the following passages 
of his Institutes: 1, 196; 2, 15, 37, 79, 128, 195, 200, 21€- 
222, 281, 244; 8, 87, 98, 108, 141, 167-8, 177-8; 4, 78-9, 
114, 170. 

We may briefly mention some of the most illustrious jurists who 
flourished subsequently to the era of Gaius. Aemilius Papinianus 
flourished under Marcus Aurelius and Septimius Severus, and was 
murdered by the order of Caracalla : 601 extracts from his writings 
are contained in the Digest. It was perhaps due to the transcend- 
ent genius, or at least to the extraordinary reputation, of Papinian, 
which made him seem too great to be reckoned any man's follower, 
that we cease henceforth to hear of opposing schools of jurispru- 
dence. Papinian appears to have been stationed at York, with the 
function of praefectus praetorio, so that England may claim some 
slight connection with the brightest luminary of Roman law. 

A disciple and colleague of Papinian was Domitius Ulpianus, 
murdered by the praetorian soldiery, whose domination he resisted, 
in the presence of the Emperor Alexander Severus : 2464 fragments, 
composing about a third of the whole Digest, are taken from his 
writings. An epitome of his Liber Singularis Regularum is still 
extant in a manuscript of the Vatican Library, and is the work 
referred to when, without mentioning the Digest, we cite the 
authority of Ulpian. 

Another disciple and colleague of Papinian was Julius Paulus, of 
whose writings 2081 fragments are preserved in the Digest, form- 
ing about a sixth of its mass. An epitome of his treatise called 
Sententiae Receptae is found in the code of Alaric 2, king of the 
Visigoths; and it is to this book that we refer when we simply 
cite the authority of Paulus. 

A disciple of Ulpian's was Herennius Modestinus, of whom 844 
extracts are contained in the Digest. After Modestinus the lustre 
of Roman jurisprudence began to decline. (For a detailed account 


136 . DE PERSONIS. 


[1. §§ 197—200. 


of the Roman jurists, see Roby’s Introduction to the Digest, 


chs. vi-xvi.) 


DE CURATORIBUS, 





. $197. | aetatem perue- 
nerit, in qua res suas tueri possit ; 
Sicuti apud peregrinas gentes custo- 
diri superius indicauimus, 


$198. Ex isdem causis et in 
prouinciis & praesidibus earum cura- 
tores dari solent. 


$ 197. After release from ward- 
ship the estate of a minor is ma- 
naged by & curator until he reaches 
the age at which he is competent 
to administer his own affairs, and 
the same rule obtains in other 
nations, as we have already men- 
tioned. 

$ 198. Under similar circum- 
stances the president of a province 
appoints a curator by the constitu- 
tion of Marcus Aurelius. 


DE SATISDATIONE TUTORUM VEL CURATORUM. 


$199. Ne tamen et pupillorum 
et eorum qui in curatione sunt, ne- 
gotia & tutoribus curatoribusque 
consumantur aut deminuantur, 
curat praetor, ut et tutores (et) 
curatores eo nomine satisdent. 


$ 200. Sed hoc non est per- 
petuum ; nam et tutores testamento 
dati satisdare non coguntur, quia 
fides eorum et diligentia ab ipso 
testatore probata est; et curatores, 
ad quos non» e lege curatio pertinet, 
sed (qui) uel & consule uel a prae- 
tore uel a praeside prouinciae dan- 
tur, plerumque non coguntur eatis- 
dare, scilicet quia satis honest elect: 
sunt. 


$ 199. To protect wards and 
minors from the destruction or 
waste of their property by guar- 
dians and curators, it is the func- 
tion of the praetor to require guar- 
dians and curators to give security 
for due administration. 

§ 200. But this is not without 
exception, for testamentary guar- 
dians are not. compelled to give 
security, as their integrity and vigi- 
lance have been approved by the 
testator ; and curators who have 
not been appointed by any statute, 
but by the nomination of a consul 
or praetor or president of a pro- 
vince, are generally not required to 
give security, their selection being 
deemed sufficient evidence of their 
trustworthiness. 


In English jurisprudence there is no distinction corresponding to 





that between tutor and curator, infant (impubes) and minor (ado- 
lescens). Infant and minor are in English synonymous : guardian- 
ship continues to the attainment of majority, i.e. to the comple- 
tion of 21 years of age; and after that the young of both sexes are 


L$ 197-200.] DE CURATORIBUS. 137 


eonsidered to be capable of taking care of themselves, and are 
free from further control. At Rome wardship (tutela) ceased at 
puberty, or, as the law came to be defined, at the age of 14 for 
males and 12 for females, ages at which the young manifestly 
continue to stand in need of guidance and protection ($ 196 Inst. 
Just. 1, 22). 

Such protection was provided for them partly by two statutes, 
partly by praetorian legislation. (1) The lex Plaetoria was as 
old as Plautus, who makes a youth exclaim: Tum lex me perdit 
quinavicenania ; metuunt credere omnes, Pseudolus, 1, 8, 69. ‘The 
statute with its five and twenty years prevents my getting credit.’ 
It made a criminal offence, and subject to a criminal prosecu- 
tion (judieium publicum, Cie. De Nat. Deor. 3, 80), what Cicero 
ealls circumscriptio adolescentium, De Off. 8, 15; i.e. over- 
reaching and circumventing persons below the age of 25. Such 
is Savigny's interpretation of judicium publicum, Vermischte 
Schriften, 18. Ihering maintains that judicium publicum de- 
notes in this passage not a criminal prosecution but an actio 
popularis; i.e. a civil action that could be instituted not only by 
the Minor but by a common Informer: and he quotes D. 26, 10, 1, 6: 
Consequens est ut videamus qui possint suspectos (tutores) postulare, 
et sciendum est quasi publicam esse hane actionem, hoc est, omni- 
bus patere, and D. 12, 2, 80, 3, where publica actio means actio 
popularis, Geist des Rómischen Rechts, § 52. The circumscrip- 
tion of a minor, like maladministration by a guardian, rendered the 
person convicted thereof infamis. The statute provided, apparently, 
that a contractor with a minor might secure himself against the 
penalties of the law, if a eurator were nominated by the praetor to 
advise the minor in respect of the special transaction. 

(2) As the lex Plaetoria was only applicable in cases of fraud 
(dolus malus, Cic. De Off. 3, 15), the protection it gave to minors 
was inadequate: accordingly, the praetor proclaimed in his edict: 
that he would relieve minors who had been damaged in consequence 
of mexperience and improvidence by rescission and cancellation of 
the proceeding (in integrum restitutio) To obtain this relief it 
was not necessary to prove any fraud on the part of the person 
who contracted with the minor. 

(3) A person who wished to bring an action against a minor 
eould compel him to obtain from the praetor a curator for the 
purpose of defending the particular suit; whose office ceased as 





138 . DE PERSONIS. [1. $$ 197-200. 


soon as the special litigation terminated. Marcus Aurelius, under 
whom Gaius flourished, enacted that any minor who chose should 
be able to obtain from the praetor a general curator (generalis 
curator), who then should be charged with the general admini- 
stration (generalis administratio) of his estate, Capitolinus, 10. 
In view of this option of the minor, Justinian could still say: 
Inviti adolescentes curatores non accipiunt praeterquam ad litem, 
Inst.1,28,2. ‘Unless they choose, minors need not have a curator, 
except for a suit A minor who had a curator could not aliene 
without the consent of his curator: he could incur an obligation 
without the consent of his curator, subject to his right of in 
integrum restitutio. Even the existence of a curator did not 
deprive the minor of his right of restitution, but of course 1t could 
not be obtained so readily as when he acted without the advice of a 
curator. 

The tutor and curator were entirely separate functionaries: when 
women were under perpetual tutelage, à woman might have both 
a tutor and a curator. The curator of a minor must be dis- 
tinguished from an agent (procurator) a person invested with 
certain rights and duties, which will be explained when we examine 
the different kinds of contract. An agent is governed by the in- 
structions (mandatum) of his principal: a minor is under the direc- 
tion of his curator: the employment of an agent is a private 
matter, purely voluntary on the part of the principal; the 
curator is a public functionary, and having one is to a certain 
extent involuntary on the part of the minor. 

Besides minors, lunatics and prodigals of whatever age were 
committed to the charge of curators, The curatio of lunatics and 
prodigals is, indeed, older than that of minors, being regulated by 
the Twelve Tables, which directed that the nearest agnate should 
be committee of a lunatic, and manage the estate of an interdicted 
prodigal. In later times it was usual for the praetor or praeses pro- 
vinciae to appoint a curator after quest (ex inquisitione). Paulus 
has preserved the form of words in which the psodigal was interdicted : 
8,4 a, 7. ‘By customary law the praetor interdicts a prodigal 
from the administration of his property in the following terms: As 
thy profligacy is wasting the estate of thy father and ancestors, 
and bringing thy children to destitution, I therefore interdict thee 
from the control of thy patrimony, and from all disposition of 


property.’ 


1 $$197-200.] IN INTEGRUM RESTITUTIO. . 139 


From $ 189 it might appear that Gaius referred the institution 
of guardianship to the code of Jus Gentium. We have, however, 
quoted from the Digest, § 142, a passage which ascribes it to Jus 
Civile: and, indeed, no institution containing numerical definitions 
(fixing, for example, on 12 and 14 for the years of puberty of the 
two sexes, and 25 for the year of majority of both sexes, without 
regard to individual development of intelligence) can be supposed 
to belong to natural law, if natural law is the less arbitrary element 
of the positive code. Moreover, the law of guardianship has been 
moet variable, not only if we look to different countries, but also if 
we look at different periods in the same country; and the praetor 
or chancellor or other authority that has had the supervision of 
guardians has always exercised a great latitude of discretion ; 
features which again forbid us to ascribe the rules of wardship to 
any comparatively immutable code of nature. A striking illustra- 
tion and proof of the civil character of the rules of wardship in 
Roman law is furnished by the fact that though a promise by a 
ward without his guardian's authority has no binding force, 1. e. 
produces no civilis obligatio, in other terms is not actionable, 
except so far as he is thereby enriched; yet, irrespectively of the 
gain or loss of the ward, Roman jurisprudence recognized that his 
promise produced a naturalis obligatio, for.it ruled that such pro- 
mise might be the basis of a suretyship, 8 $ 119, and might extin- 
guish a previous debt by novation, 8 $ 176; and both suretyship 
and novation are institutions which are essentially accessary ; that 
is to say, each implies the existence of two distinct obligations, 
either civil or natural, one assuring and the other assured, or one 
transforming and the other transformed. If wardship had been 
regarded as a natural or gentile institution, then the promise of 
the ward would have had no validity by the gentile code (naturalis 
obligatio), and would have been incapable of being confirmed by 
suretyship or transformed by novation. | 

In integrum restitutio, a branch of the praetor’s equitable juris^ 
diction, and one of the-most remarkable cases of his cognitio extra- 
ordinaria, has been mentioned more than once, and deserves here 
a brief explanation.  Restituere in a general sense denotes any 
undomg of a wrong, any replacement of a person or his right in 
his or its original condition, whether by the voluntary act of the 
wrongdoer, or after action brought, and then either at the invi- 
tation of the judge (in virtue of the clause, ni restituat, 4 § 47), or 





140 | DE PERSONIS. [1. $$ 197-200. 


in execution of a judicial sentence. But in the phrase we are 
examining it denotes the act, not of a private party, but of a 
judicial authority. In integrum restitutio is the restitution by the 
praetor of a person or his right to his or its original uninjured con- 
dition, in cases when no remedy is to be obtained either from the 
rigorous rules of the civil law or jus strictum (e.g. by civilis actio), 
or even from equity as administered by the ordinary judges in the 
ordinary forms (e.g. by exceptio or bonae fidei actio). The inter- 
position in such cases of the highest Roman minister of justice 
resembles that of the English chancellor when a suitor is unable to 
obtain redress by the rules and forms of the courts of common law. 
The function of overruling the ordinary course of law where it 
eollided with equity was only confided to the highest judicial 
authority, and even in his hands was governed, at all events 
in later times, by precise rules of positive law. Five grounds or 
titles (justae causae) to extraordinary relief (extraordinarium auxi- 
lium) were recognized and enumerated in the edict, Dig. 4, 1: 
intimidation (metus), fraud (dolus malus), absence, error, minority 
(aetatis infirmitas). Two, however, of these titles, fraud and intimi- 
dation, had additional remedies in the ordinary course of procedure 
(ordo judiciorum), where they were recognized as grounds of excep- 
tion and personal action. First a praetor called Cassius introduced 
the exceptio doli, D. 44, 4, 4, 33. Then a praetor called Octavius 
introduced the actio and exceptio metus mentioned by Cicero, 
Verr. 2, 8, 65, where the actio metus is called Formula Octaviana. 
Lastly Aquilius, colleague of Cicero, introduced the actio doli, Cic. 
de Natura Deorum, 8, 30. 

The chronological order of the remedy by Action and the 
remedy by Restitution is disputed. Savigny holds that the 
remedy by Restitution was older than the remedy by. Action, 
$112, $191, $ 199; while Vangerow holds that the remedy by 
Action was older than the remedy by Restitution, $ 185. The 
latter opinion seems more consistent with the statement of Cicero, 
De Off. 3, 14. 

- There are three conditions of Restitution: (1) The first condi- 
tion is a Laesion by the operation of civil law, i.e. a disadvan- 
tageous change in civil rights or obligations brought about by 
some omission or disposition of the person who claims relief. This 
disadvantage may either consist in positive loss of acquired property, 
er in missing a gain which would not have involved, on the part of 


1.§ 197-200. | IN INTEGRUM RESTITUTIO. 141 


anther, a positive loss of acquired property. An instance of such 
a laesion would be the loss of property by omitting to interrupt 
ausucapio, or by omitting to claim à succession (aditio, agnitio), 
or by entering into a foolish bargain. 

(2) A second condition is some special or abnormal position of 
the person who claims relief when such special circumstance is 
the cause of the loss which he has suffered. Thus a minor may 
be relieved against an injudicious bargain, but not against the 
casual destruction of the thing he has purchased, for this loss was 
not occasioned by his minority or inexperience. Such abnormal 
positions (justae causae) are compulsion, fraud, minority, absence, 
error. 

(3) A third condition of relief is the absence of various disen- 
titling circumstances. Thus relief is granted against the effect 
of lawful omissions or dispositions, but not against the effect of 
delicts ; at all events not of dolose or intentional delicts, but only 
of eulpose delicts, 1. e. of torts committed from negligence. Again 
the extraordinary relief of in integrum restitutio is not granted 
when the courts of civil law can administer an adequate remedy. 

Originally capitis minutio of a defendant was ground for a resti- 
tution, 8 $ 84; but this ceased at an early period to be a genuine 
case of restitution ; for rescission of the adrogation, adoption, eman- 
cipation, whereby a person's debts were extinguished, was granted 
as a matter of course without any previous investigation (causae 
cognitio), and without any period of prescription like that which 
limited the right to pray for restitution. 

This was, originally, annus utilis, and in the time of Justinian, 
quadriennium continuum or 4 calendar years, which begin to run, 
not from the date of the Laesion, but from the termination of the 
Causa, i.e. the abnormal position— minority, absence, compulsion, 
deception, error—whereby the Laesion was occasioned. Such at 
least is Savigny's opinion. Vangerow holds that, except in 
Minority and Absence, prescription begins to run from the date 
of Laesion, 4 §§ 110-113 comm. The terms of the Edict in the 
case of Absence were as follows: they consist of three clauses : 


(1) [Absence of plaintiff] 
If any person’s property has been lost in the absence of the 


proprietor whether from fear, or in the public service without his 
fraud, or while he was in bonds or in slavery or in the power 


142 | DE PERSONIS, [r.$$ 197-200. 


of enemies; or if any right of action of any such person has been 
lost by prescription : 

(2) [Absence of defendant] 
or if another person has acquired any property by usucapion or by 
non-user of the proprietor; or has become non-suable by prescrip- 
tion by reason of having been absent and undefended, or by having 
been in bonds, or by having given no opportunity of being sued, 
or by having been exempt from being sued without consent, and 
having had no suable representative, or by having obtained the 
intervention of a magistrate, or by a magistrate having hindered 
the suit without fraud of the plaintiff: to repair such loss I will 
revive the plaintiff's right of action at any time within a year 
from the date when it first becomes possible to apply to me for 
relief ; 


(3) [Generalis clausula] : 


and I will do the same if any other adequate cause shall be shown 
so far as statutes, plebiscites, senatusconsults, edicts, and imperial 
decrees shall permit. Savigny, $ 325. 

Of the five titles to restitution that we have enumerated, four, 
namely, intimidation, fraud, absence, error, implying equality of 
rights in all parties, belong to the law of Things; title by minority, 
implying a privileged class or inequality of nghts, belongs to the 
law of Persons. 

As we shall have occasion in the next book to use the expression 
Rerum universitas, it may seem appropriate, before we quit the law 
of Persons, to give some Explanation of the contrasted term, Per- 
sonarum universitas, A University of persons in the private code is 
a fictitious or juristic person, composed generally by the union of a 
number of individuals, and capable like a natural individual (singu- 
laris persona) of the various rights and duties of property, that is 
to say, of dominium, servitus, potestas, patronatus, colonatus, obli- 
gatio; and the power of suing and being sued. 

Some Universities have a visible existence in a number of indi- 
vidual members, and are then called Corporations. An essential 
ineident of Corporations is that their rights are not vested in the 
aggregate of individuals, but in the ideal whole, regarded as distinct 
from the members of which it is composed, Examples of such Cor- 
porations are municipalities (civitas, municipium, respublica, com- 
munitas), colleges of priests, of Vestal Virgins, corporations of 


1 §197-200.] PERSONARUM UNIVERSITAS. 143 


subordinate officials, e.g. lictors, notaries (scribae, decuriae), in- 
dustrial guilds, e.g. smiths, bakers, potters, shipowners, mining 
companies (aurifodinarum, argentifodinarum, salinarum, societas), 
contractors for the revenue (vectigalium publicorum societas), social 
clubs (sodalitates, sodalitia), friendly societies (tenuiorum collegia). 

Other juristic persons, not so visibly embodied in any natural 
individuals, e.g. churches, hospitals, almshouses, or any other be- 
neficent aims personified, are called, not Corporations but, Foun. 
dations. 

The state as a juristic person, invested with rights of property, 
was called in the time of the republic /Erarium. Under the first 
emperors, when the public treasure was divided between the em- 
peror and the senate, the senate, as a juristic person representing 
the republic, was called /Erarium, while the emperor was called 
Fiseus, At an uncertain date, about the time of Gaius, when all 
power was undisguisedly absorbed by the emperor, and the public 
chests were united, the terms Afrarium and Fiscus lost their dis- 
tinctive meanings, and we find them used convertibly in the compi- 
lations of Justinian. 

Juristie persons, though invested with rights of property, being 
mere fictions or ideal unities, are incapable of making a disposition 
(declaration of intention); for how can a fiction have an intention ? 
It is true that slaves could acquire property and active obligations 
for their proprietors; but a slave could not aliene property, nor 
incur à passive obligation, nor enter into a bilateral contract, nor be 
a party to a suit: and therefore Universities could not make such 
dispositions by means of their slaves. In this respect they resemble 
infants and lunatics ; and as infante and lunatics must be represented 
by their guardians and curators, so juristic persons must be repre- 
sented by the agents designated and defined by their constitution. 
The temporary representative of a Corporation for the purpose 
of sumg and being sued, was called Actor; a permanent repre- 
sentative for this purpose was called Syndicus, D. 8, 4, 1. The 
constitutions of juristic persons are too various to admit of any 
general definition. In towns the supreme direction and represen- 
tation belonged to the Senate (curia, ordo). A meeting of two- 
thirds of the whole number of members represented the whole 
senate, and the vote of the majority in such a meeting was the 
decision of the senate, 


Although a Universitas is said to hold common property, the 





142 p DE PERSONIS. — ^"'  [r$$197-200. 


relation of the members of a Universitas must nob be identified with 
that of Coproprietors (communio). A coproprietor is the separate 
proprietor of an undivided ideal portion, which he can aliene, mort- 
gage, and otherwise dispose of ; and which, by requiring a partition 
(actio communi dividundo), he can always reduce to a real portion : 
whereas the whole of the common property can only be dealt 
with if the coproprietors are unanimous. Members of a Univer- 
sitas, on the contrary, cannot demand a partition; and dispo- 
sitions of the property of the Universitas can only be made, and 
can always be made, by the vote of a majority of two-thirds of the 
members. 

Every juristic person was originally incapable of being instituted 
successor (heres) as Pliny mentions in the case of municipalities : 
Nec heredem institui nec praecipere posse rempublicam constat. 
Epist. 5, 7. ‘Neither successions nor legacies by praeceptio (which 
imply that the legatee is also heir, 2 $ 217) can be left to a town.’ 
Juristic persons were not subject to this incapacity because they 
were personae incertae, 2 $ 238, for they are personae certae, but 
because, being fictions, they were incapable of aditio, which involves 
intention, and excludes representation. First the senate, disre- 
garding this difficulty, allowed municipalities to be instituted suc- 
cessors by their own liberti, Ulpian 22, 5: and subsequently the 
Emperor Leo, a.p. 469, gave to municipalities the capacity of being 
instituted successor by any testator, Cod. 6, 24,12; cf. 2,196. No 
general enactment extended this capacity to all Corporations, but 
some received it as a special privilege. 

Originally towns, like other juristic persons, were incapable of 
taking bequests (legata) but subsequently towns were declared 
capable by Nerva and Hadrian, Ulpian 24, 28; Gaius 2 $195 : and 
this capacity was extended to Collegia and Templa, D. 34, 5, 20, 
and probably to all juristie persons. Towns were also capable of 
taking successions by fideicommissum, Ulpian 22, 5. 

Under Christian legislation Pious Foundations (pia corpora) were 
made capable of taking hereditas and legatum: and devises of 
hereditas and legatum, that would otherwise have been void by the 
rule avoiding devises to incerta persona, e.g. a devise to the poor of 
& town who, not forming & corporation, were not persona certa, 
acquired validity from the pious purpose of the disposition. 

Some juristic persons have special privileges; for instance, the 
Fiscus has privileges over other creditors. Sometimes the indi- 


1$$197-200. PERSONARUM UNIVERSITAS. 145 


vidua] members have certain privileges; for instance, the rank of 
municipal senator (decurio) was hereditary and the senate formed a 
kind of caste. 

The origin and extinction of a juristic person requires the assent 
of the sovereign. The special privileges and incapacities which we 
have indicated, by their analogy to status, may perhaps justify the 
mention of Universities in the law of Persons. Savigny, $$ 85-102. 


BOOK II. 


DE REBUS SINGULIS ET DE RERUM 
UNIVERSITATIBUS. 





DE RERUM DIVISIONE. 


$ 1. Superiore commentario de 
twre personarum | exposuimus; mo- 
do uideamus de rebus ; quae uel in 
nostro patrimonio sunt uel extra 
nostrum patrimonium habentur. 


$ 2. Summa itaque rerum diuisio 
in duos articulos diducitur: nam 
aliae sunt diuini iuris, aliae humani. 


$ 3. Diuini iuris sunt ueluti res 
sacrae et religiosae. 


$ 4. Sacrae sunt quae diis superis 
consecratae sunt; religiosae quae 
diis Manibus relictae sunt. 


§ 5. Sed sacrum quidem hoc solum 
existimatur quod ex auctoritate 
populi Romani consecratum est, 
ueluti lege de ea re lata aut senatus- 
consulto facto. 

$6. Religiosum uero nostra uo- 
luntate facimus mortuum inferentes 
in locum nostrum, si modo eius 
mortui funus ad nos pertineat. 


$ 7. Bed in prouinciali solo placet 
plerisque solum religiosum non fieri, 


§ 1. In the preceding book the 
law of persons was expounded; now 
let us proceed to the law of things, 
which are either subject to private 
dominion or not subject to private 
dominion. 

$ 2. The first division of things 
is into two classes: things subject 
to divine dominion, and things sub- 
ject to human dominion. 

$ 3. Subject to divine dominion 
are things sacred and things reli- 
gious. 

$ 4. Sacred things are those con- 
secrated to the gods above; reli- 
gious, those devoted to the gods 
below. 

$ 5. Sacred things can only be- 
come so with the authority of the 
people of Rome, by consecration in 
pursuance of a law or a decree of 
the senate. 

$ 6. A religious thing becomes so 
by private will, when an individual 
buries & dead body in his own 
ground, if the burial is his proper 
business. 

$ 7. On provincial soil, accordi 
to most authorities, as the dominion 


1.851-14.] 


quia in eo solo dominium populi 
Romani est uel Caesaris, nos autem 
possessionem tantum uel usumfruc- 
tum habere uidemur ; utique tamen 
etiamsi non sit religiosus, pro re- 
ligioso habetur. 

$ 7a. Item quod in prouinciis 
non ex auctoritate populi Romani 
consecratum est, proprie sacrum 
non est, tamen pro sacro habetur. 


$ 8. Sanctae quoque res, uelut 
muri et portae, quodammodo diuini 
iuris sunt. 


$ 9. Quod autem diuini iuris est, 
id nullius in bonis est ; id uero quod 
humani iuris est, plerunque alicu- 
tus in bonis est; potest autem et 
nullius in bonis esse; nam res here- 
ditariae, antequam aliquis heres ex- 
tstat, nullius in bonis sunt. 


§ 9a. —— 
(8 fere uersus in C legi nequeunt.) 
| *e domino. 





$10. Hae autem quae humani 
juris sunt, aut publicae sunt aut 
priuatae. 

11. Quae publicae sunt, nullius 
videntur in bonis esse ; ipsius enim 
uniuersitatis esse creduntwr. priua- 
tae sunt quae singulorum hominum 


DE RERUM DIVISIONE. 


147 


belongs to the people of Rome or 
the emperor, and individuals only 
have possession or usufruct, such 
places, though not properly reli- 
gious, are quasi-religious. 


$ 7a. Just as provincial soil, in 
default of the authorization of the 
people of Rome, is rendered by 
consecration not sacred, but quasi- 
sacred. 

§ 8. Sanctioned places are to a 
certain extent under divine domi- 
nion, euch as city gates and city 
walls. 

§ 9. Things subject to divine 
dominion are exempt from private 
dominion; things subject to human 
dominion are generally subject to 
private dominion, but may be other- 
wise: for an inheritance before a 
successor is ascertained has no actual 
proprietor. 


§ 10. Things subject to human 
dominion are either public or pri- 
vate. 

$11. Things public belong to 
no individual, but to a society or 
corporation ; things private are sub- 
ject to individual dominion. 


DE REBUS INCORPORALIBUS. 


$12. Quaedam praeterea res cor- 
porelee sunt, quaedam in(corpor- 


“ 13. Corporales hae (sunt) quae 
tangi possunt, uelut fundus homo 
uestis aurum argentum et denique 
aliae res innumerabiles. 

§ 14. Iucorporales eunt quae tangi 
non possumt, qualia sunt ea quae iure 
consistunt, sicut hereditas, usus- 
fructus, obligationes quoquo modo 
contractae. nec ad rem per(ttnet, 
quod in hereditate res corporales 
om)tinentur et fructus qui ex fun- 


$12. Again, things are either 
corporeal or incorporeal. 


$ 13. Things corporeal are tan- 
gible, as land, a slave, clothing, gold, 
silver, and innumerable others. 


$ 14. Things incorporeal are in- 
tangible ; rights, for instance, such 
as inheritance, usufruct, obligation, 
however contracted. For though 
&n inheritance relates to things 
corporeal, and the fruits of land en- 
joyed by a usufructuary are corpo- 


L 2 


148 


do percipiuntwr, corporales sunt, et 
quod ex aliqua obligatione nobis 
debetur, id plerumque corporale 
est, welutt fundus homo pecunia; 
nam ipsuin ius successionis et ipsum 
ius u£endi fruendi et ipsum ius 
obligationis incorporale est. eodem 
numero sunt iura praediorum urba- 
|norum et rusticorwm. 
altius tollendi | 
uicini aed—non extollen 





I—— 
luminibus 
di, ne lu- 














minibus uicini officiatur. | item flu- 
minum et stilicidiorum ius, ut 











in aream —| 
ius aquae ducendae — 








$ 14a. aut mancipit sunt 
aut nec mancipii. | Mancip#i sunt 
litem aedes in Italico solo 

| seruiltutes praedio- 
rum urbanorum nec mancipié sunt. | 

















DE REBUS SINGULIS. 


(im. $$ 1-14 


real, and obligations generally relate 
to the conveyance of something 
corporeal: land, slaves, money; yet 
the right of succession, the right of 
usufructuary enjoyment, and the 
right of the contractor, are incor- 
poreal. fo are the rights attached 
to property in houses and land. The 
following are rights attached to 
property in houses: the right of 
raising a building and thereby 
obstructing the lights ofa neighbour- 
ing building; theright of prohibiting 
& building being raised, so that one’s 
lights may not be interfered with ; 
the right of letting rain water fall 
in a body or in drops on a neigh- 
bour’s roof or area; the right of 
having a sewer through a neigh- 
bour’s area, or a window in a neigh- 
bour's wall (cf. Epit.2, 1, 3). The 
following are rights attached to 
property in land: iter, a right of 
way on foot or horseback ; actus, a 
right of way for ordinary carriages ; 
via, & right of paved way for heavy- 
laden waggons; pecoris ad aquam 
appulsus, a right of watering cattle ; 
aquae ductus, a right of conveying 
water through the tenement of 
another. 

§14a. Things are farther divided 
into mancipable and not mancipable; 
mancipable are land and houses in 
Italy; tame animals employed for 
draught and carriage, as oxen, 
horses, mules, and asses; servitudes 
attached to property in land; but 
servitudes attached to property in 
houses are not mancipable. 


Having treated of the law of Persons (unequal rights), we proceed 
to the law of Things (equal rights), and the first right which Gaius 


intends to discuss is the right called Dominion. 


Seduced, however, 


by an ambiguity of the word Res, which signifies either a right or 
the subject of a right, his opening statements ($5 12, 18, 14) are 


deplorably confused. 


In order to see our way, let us first examine Res as denoting the 


i. $$ 1-14.] DE RERUM DIVISIONE. 149 


Subject of a nght. Every right implies, as we have stated, an 
obhgation ; and every right or obligation implies at least two per- 
sons, one of whom has the right while the other has the obligation. 
The immediate oBjECT of every right is an act or forbearance of 
the person who has the obligation. But the act or forbearance 
generally relates to some body, that is, to some tangible portion of 
the external world, whether a thing or a person. This body, accord- 
ingly, may be called the mediate, indirect, or secondary Object of 
the right, or, in the nomenclature we have adopted, its sUBJECT. 
The subject of a right, however, is not always a body; it may be 
corporeal or incorporeal. For instance, dominion over land is a 
nght to forbearance on the part of all the world from molestation 
of the owner in dealing with the land. A servitude, say a right of 
way, is a right to forbearance on the part of all the world from 
molestation of the person entitled when he passes over certain land. 
A contractual right is a right to a positive act or performance on 
the part of a determinate person, say, to the conveyance or delivery of 
a certain piece of land. In these cases, land, the subject or secondary 
object of the right, is something corporeal. So, too, when a third 
person is the subject of a right; for instance, a child or a gladiator, 
8 § 199, in the possession (detention or custody) of the parent or 
employer, and whose removal from such possession engenders in the 
removing party an obligation ex delicto. But in primordial rights, 
the subject, at least as distinguished from the two parties in whom 
the right and obligation respectively vest, is something incor- 
poreal. A man has a right to forbearance on the part of all the 
world from molestation in his life, health, locomotion, honour. 
These subjects of the right are incorporeal. Other nghts, appa- 
rently, have no determinate subject, corporeal or incorporeal, to 
which they are correlated. In a right to the services of a menial 
or gladiator, for instance, it would be hard to indicate any subject 
or secondary object to which the obligation of the menial or 
gladiator relates. 

It is clear that no division of Subjects of right will coincide with 
a classification of Rights: while, if we divide Res in the meta- 
physical sense of the World, or Being, or Existence (a sense sug- 
gested by the differentiae, corporalis, and incorporalis), Dominion, 
hke all other rights, will be a member of the branch res incor- 
poralis, Gaius, however, wishes us to identify Dominion with res 
corporalis, and to make Obligation and the fractions of Domi- 





150 | DE REBUS SINGULIS. [n.$$ 1-14. 


nion (servitutes), and even some forms of Dominion (e.g. hereditas), 
members of the contra-distinguished branch, res incorporalis. (Cf. 3 
$ 88, omnes ejus res incorporales et corporales quaeque ei debita 
sunt.) 

Gaius was probably not entirely responsible for this confusion of 
thought, which, perhaps, was too deeply inwoven in the formulae 
of Roman jurisprudence to be easily eliminated by an institutional 
writer. E.g. the declaration (intentio) of a real action (in rem 
actio) was of the form: Si paret (1) illum fundum—12) illam 
hereditatem— actoris esse. (Cf. 4 $ 8. In rem actio est cum 
aut corporalem rem intendimus nostram esse aut jus aliquod 
nobis competere.) Now as hereditas is a jus successionis (2 § 14), 
it is clear that, if the second formula is correct, the first formula 
ought to be, not, Si paret illum fundum—but, Si paret illus 
fundi proprietatem — aetoris esse. To meet this and similar 
inaccuracies of the framers of the formularies, Gaius is misled 
into identifying in res corporalis two things completely disparate, 
Right and the Subject of a right. There is a similar confusion 
in English law, chattels, tenements, and hereditaments being 
sometimes used to denote the subjects, movable or immovable, of 
certain rights, sometimes the rights over those subjects: and just 
as Res is divided into Corporalis and Incorporalis, so Heredita- 
ments are divided into Corporeal and Incorporeal; although, if 
the term denotes a right, both branches are equally incorporeal : 
if it denotes the subject of a right, both branches are equally 
corporeal. 

In order to distribute the world of rights minus the rights of 
status, and to indicate the position held by Dominion in the system 
and the method substantially followed by Gaius, we may adopt the 
following division :— 

Equal rights are either sANCTIONED, primary, final; or 
SANCTIONING, secondary, instrumental. 

SANCTIONED righís are either— 

Rea: rights availing against all the world (sus IN REM), or 


PrnsoNAL: rights availing against certain determinate persons 
(JUS IN PERSONAM). 

Sanctioned rights against the world are either— 
Unrelated to the external material universe, or 
Related to the material universe. 


1.§§ 1-14] DE RERUM DIVISIONE. 151 


Sanctioned rights unrelated to the material universe are 
PRIMORDIAL, or inborn rights. (These are not examined 
separately by Gaius, but are implied in obligatio Ex 
DELICTO. ) 

Sanctioned rights related to the material universe are Po$- 
SESSION, DOMINION, SERVITUDE. 

Sanctioned rights availing exclusively against certain persons, 
correlate to obligations EX coNTRACTU: that is, to the 
duties immediately produced by contract and before its 
violation. 

SANCTIONING rights are capable of the same subdivision, as 
SANCTIONED rights. They are not examined separately by 
Gaius, but partly under the head of obligatio EX DELICTO 
(founded on violation of PRIMORDIAL or other REAL right), 
partly under the head of obligatio Ex contractu (obligation 
produced indirectly by contract, that is, by its violation), partly 
under the head of acTionEs (procedure): personal actions pro- 
secuting obligation EX DELICTO and EX CONTRACTU; and real 
actions being the remedy for violations of POSSESSION, DOMINION, 
SERVITUDE. 

We shall find hereafter that the position of POSSESSION, in 
Roman jurisprudence—whether it belongs to the department of 
its IN REM or of OBLIGATIO EX DELICTO is a moot question; but 
at present we need do no more than notice the existence of the 
controversy. We need also only to indicate a further division 
of rights and obligations into srNGLE rights and obligations, 
such as those of which we have just given a classification, and 
AGGREGATES of rights and obligations (UNIVERSITAS JURIS), such 
as Hereditas. A UNIVERSITAS JURIS includes Obligations as well 
as Rights, Jus in personam as well as Jus in rem, and Sanction- 
ing rights as well as Sanctioned rights. But in spite of the 
diverse character of these elements of which it is composed, the 
JURIS UNIVERSITAS itself, or the ideal whole of these various 
elements, is regarded, e. g. in Hereditatis petitio, as a Real right, not 
an Obligation; as a Jus in rem, not a Jus im personam; as a 
Sanctioned right, not a Sanctioning right. (As Res includes 
Obligation (res incorporalis) as well as Dominion (res corporalis), 
Thave used the term RERUM UNIVERSITAS to denominate the sub- 
ject of Books II and III, as marking more clearly than Juris 


162 DE REBUS BINGULIS. [n. §§ 1-14. 


UNIVERSITAS an antithesis to RES SINGULAE; though I am aware 
that Rerum universitas has generally a more insignificant accepta- 
tion, denoting an artificial whole—a flock, herd, or library—in 
opposition to the ingredients—the single sheep, horses, books—of 
which it is composed.) 

As Gaius thought that he could obtain the idea of Dominion by 
a division of Res into corporalis and incorporalis, so he seems to 
have thought that he could distinguish private dominion, the special 
department which he intends to examine, from other forms of do- 
minion by a further division of Res. The phrases res divinae, res 
humanae, res communes, res publicae, res privatae, do, indeed, sug- 
gest the notion that res privatae is a specific member of the genus 
Res; but the appearance is fallacious. Very little reflection will 
convince us that res divinae, res publicae, res privatae are not 
a division of the suB7ECTS of property (res); for the same thing, a 
piece of ground, for instance, may be the subject of divine or publie 
or private dominion; but merely a division of proprietors. In res 
divinae, the only doubtful case, the gods were deemed to be pro- 
prietors. Sed et illa interdicta quae de locis sacris et de religiosis 
proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2. 
‘The interdicts respecting sacred and religious places protect a 
quasi-property.’ 

The division of the subjects of right by their physical differences, 
the only way in which they can be divided, though only of subor- 
dinate importance, and though it cannot furnish the distinctions of 
Dominion and Obligation, nor of Public and Private dominion, yet 
has a considerable influence on jurisprudence, and demands a certain 
amount of attention. Thus ocean, air, and light, as opposed to the 
earth, are by their nature essentially res communes. Being in- 
capable of appropriation, they have not been appropriated and are 
held in communism, Again, the distinction of res corporales and 
res incorporales may ground the distinction between Dominion and 
Primordial righte. Again, in wild animals, as opposed to tame, 
property is only coextensive with detention. On the difference 
between specific and generic things, or things consumed by use, 
quae pondere numero mensurave constant, and things not consumed 
by use, is founded the distinction between the contracts of mutuum 
and commodatum. On the same difference of specific and generic 
things are founded in English law different rules for the trans- 
mutation of property in the contract of sale, 8 $189; and the 


m §§ 1-14.] DOMINION. 158 


distinction of movables and immovables founds a still more im- 
portant difference in the English forms of alienation and rules of 
succession. 

The phrases in nostro patrimonio and extra nostrum patrimonium, 
$1, are apparently equivalent to alicujus in bonis and nullus iri 
bonis, $ 9, and to the expressions we meet elsewhere, in commercio 
and extra commercium. As to res divini juris, cf. Inst. Just. 2, 
1, 7. 

Of res communes, or the dominion of mankind, which sometimes 
eomes under discussion but is not mentioned by Gaius, we may 
observe, that it scarcely falls within the scope of our present pro- 
vince, namely, positive law, for all positive law is confined to 
the territory of the particular sovereign state by which it is 
enacted. 

All the things within the territory of a given state are subject to 
its dominion, that is, are res publicae in a general sense of the term. 
Of these things it allows the dominion over some to vest in private - 
individuals for their own advantage, while it retains the dominion 
over others in itself as a corporation or collective person (per- 
sonarum universitas) This gives us a division of all things into 
res privatae and res publicae in a narrower sense of the term. We 
must note, however, that the dominion of the state is not exactly 
sunilar to private dominion, that is to say, is not dominion in 
the proper sense or the sense in which the word is used in civil 
law. For the civil dominion of private persons is a right pro- 
tected and sanctioned by a political superior, whereas a sovereign 
state is by hypothesis in subjection to no superior. A state, then, 
can only be said to have dominion in a modified sense of the word, 
that is, so far as it is not restrained by any positive law of any 
superior from using and dealing with certain things as it may 
please. 

Of things subject to public dominion, some are vested immediately 
m the state, others in subordinate persons, single or corporate, 
magistrates, for instance, and municipalities, to be held by such 
persons for various public purposes. Among these we may reckon 
res divinze which are portions of public dominion vested in certain 
corporations in trust for religious purposes. 

Another division of res publicae is into res in patrimonio populi 
and res non in patrimonio populi. Under the former are included 
the public treasury, the public domain, public slaves, escheats 


154 DE REBUS SINGULIS. [rr. $$ 1-14: 


(caduca) or res privatae that relapse to the state by forfeiture, or 
as ultimus heres; in other words, all things of which the state as 
universitas retains not only the property but also the use and 
disposition (quasi propriae et privatae res universitatis, Dig. 43, 8, 
2, 4). The other class includes, high roads, publie rivers, public 
buildings, &c., that is, all things of which the property is in the 
community and the use in the members of the community. Or 
we may say that the property is in the universitas, but it is subject 
to a personal servitude (usus) vested in all the private members of 
that universitas (singuli, universi). 

Not only res publicae but res privatae may be subject to this sort 
of personal servitude. For instance, the banks of public rivers and 
the trees thereupon are the property of the adjacent proprietors: 
but the navigators of these rivers have the right of mooring, 
landing, unlading, and using the banks in various other ways, 
Inst. 2, 1, 4. 

Property absolute or pre-eminently so called, may be defined as 
a right of unlimited duration, imparting to the owner a. power of 
indefinite enjoyment or use, and a power of aliening from all who 
in default of alienation by him might succeed by descent; or, in 
other words, from all successors interposed between himself and the 
sovereign as ultimus heres, It is accordingly sometimes said to 
consist of jus utendi, fruendi, abutendi; where abusus includes the 
power of consumption or destruction, of dereliction, and of dis- 
position (sale, exchange, gift, mortgage, lease, &c.) Another 
element is equally important, the right of exclusion (jus prohi- 
bendi) Another is the jus transmittendi, i. e. the right of leaving 
the integral right, in the absence of Disposition, to those whom he 
would presumably have wished to be his successors. 

Besides absolute property Roman law recognizes various kinds of 
partial property, real rights over a subject of which the dominion 
is in another person, called jura in re or jura in re aliena, rights 
which fall short of absolute property but approximate to it in 
various degrees. Such are servitudes, § 14, mortgage (pignus), 
superficies, and emphyteusis. "These may all be regarded as detached 
fractions of property, portions of the nght of dominion taken from 
the proprietor and vested in another person. Servitudes are explained 
by Justinian in the parallel passage of his Institutes (II, 3—5), and, 
together with the other jura in re aliena, demand here a brief notice. 

Servitudes are (1) praedial or real (praediorum), that is, belong to 


n. § 1-14.] SERVITUDE. 155 


3 person as owner of a certain house or land (praedium dominans) 
in respect of a house or land belonging to another proprietor (prae- 
dium serviens), or (2) personal (personarum), that is, are vested in 
a person without relation to his ownership of praedium dominans. 
(Compare im English law the division of easements into easements 
appurtenant to land and easements in gross.) 

Praedial servitudes are servitudes properly so called and are con- 
trasted with property by their precise and definite circumscription. 
Property is a right against the world which gives to the party in 
whom it resides a power of dealing with the subject which is not 
capable of exact definition. Servitude is such a right against the 
world as gives to the party in whom it resides a power of using the 
subject which is susceptible of precise description. It is a definite 
subtraction from the indefinite powers of use and exclusion which 
reside in the proprietor; or a right against the owner and the rest of 
the world to make certain use of a thing or prohibit certain uses. 

Praedial servitudes are (1) rustic, relating to land, or (2) urban, 
relating to houses. Urban servitudes are further subdivided into 
Positive or Affirmative and Privative or Negative. The following 
considerations will show the meaning of this division and its origin 
m the nature of Property. | 

Servitudes are limitations of, or deductions from, another person's 
ownership or dominion. Dominion contains, among other elements, 
(A) certain powers of action (jus utendi), and (B) certain powers of 
exclusion (jus prohibendi) Restrictions on these powers will be 
(2) a certain necessitas non utendi, and (4) a certain necessitas 
patiendi. Correlative to these obligations on the part of the owner 
of the servient,tenement will be certain rights of the owner of the 
dominant tenement, viz. (a) a certain jus prohibendi, and (8) a 
certain jus utendi, or in other words, (a) a certain negative servitude, 
and (8) a certain affirmative servitude. As it happens that all the 
servitudes which public policy has recognized in relation to land 
are of an Affirmative character (except Si concedas mihi jus tibi 
non esse in fundo tuo aquam quaerere, minuendae aquae meae 
gratia, D. 8, 2, 1, 15) and relate to some transient action (except 
Tugurmum habendi in tuo sui habeam pascui servitutem aut pecoris 
appellendi, D. 8, 8, 6, 1), they may be called jus faciendi: while 
those relating to houses are both Affirmative and Negative (jus 
prohibendi). Affirmative Urban servitudes, implying some per- 
manent structure, may, in conformity with classical usage (e. g. jus 





156 DE REBUS SINGULIS. (a. $$ 1-14. 


tignum immissum habendi) for the sake of distinction from the 
Rural servitudes, be called jus habendi: they resemble them in the 
generic character that they are each a jus utendi. 

(1) Instances of Rural servitude (jus faciendi) are iter, or jus 
eundi, right of way for beast and man on foot or on horseback over 
the servient tenement to the dominant tenement; actus or jus 
agendi, right of way for ordinary carriages (not for heavy-laden 
waggons); via (or jus vehendi?), nght of paved way for heavy- 
laden waggons; aquae haustus, the right of drawing water from 
@ private spring; aquae ductus, the right of conveying water over 
the servient tenement; pecoris ad aquam appulsus, the right of 
watering cattle; jus pecoris pascendi, the right of pasturing cattle; 
jus calcis coquendae, the right of burning lime; jus cretae exi- 
mendae, the right of quarrying for chalk; jus arenae fodiendae, 
the right of taking sand; jus sylvae caeduae, the right of cutting 
timber, D. 8, 8. 

(2) Instances of jus habendi are jus tigni immittendi, the right 
of inserting a beam in & neighbour's wall; jus oneris ferendi, the 
right of resting a weight on a neighbours wall or column (this 
servitude involves on the part of the servient owner the positive 
obligation of repairing the servient wall (refectio); whereas all 
other servitudes, as real rights, are contradistinguished from 
obligations proper, or personal righte, by corresponding to the 
merely negative obligation of abstention); jus protegendi, the right: 
of projecting a roof over the soil of a neighbour; jus stillicidii 
recipiendi or avertendi or immittendi, the right of directing the 
rainfall on to a neighbour's roof or area; jus cloacae immittendae, 
the nght of having a sewer through the area of a neighbour; 
servitus luminum or jus luminis immittendi, the right of having 
& window in a neighbours wall; jus officiendi luminibus vieini, 
the reacquired right of diminishing the light of & neighbour; jus 
altius tollendi, the reacquired right of increasing the height of a 
structure, 2 $ 81; the right of storing fruit in his villa, ut fructus 
in vicini villa cogantur coactique habeantur; of placing quarried 
stones on his land, terr&m, rudus, saxa, jacere posita habere, 
et ut in tuum lapides provolvantur ibique positi habeantur, 
D. 8, 8, 38, § 1, $ 2. Vangerow holds that Aquaeductus, 
implying jus habendi, though it is servitus Rustica as to the land 
from which water is taken, is servitus Urbana as to the land over 
which water is conveyed. 


n. § 1-14.] SERVITUDE. 157 


(3) Instances of jus prohibendi are jus altius non tollendi, the 
right of forbidding a neighbour to raise the height of his buildings ; 
jus ne prospectui officiatur, the right of having a prospect un- 
intercepted ; jus ne luminibus officiatur, the right of having the 
access of light to one’s windows unobstructed; jus stillicidii non 
avertendi, the reacquired right of prohibiting my neighbour from 
discharging his rainfall into my area. Inst. 2, 8. 

Personal servitudes are rights of a less limited character: in- 
stances are Habitatio, the right of occupying a house, Usus, the 
right of using a thing and consuming its immediate fruits or 
products, without the right of letting the thing or selling its pro- 
ducts ; of acquiring, in other words, its rent and profits, which 
may be regarded as its mediate or secondary fruits. Inst. 2, 4, and 
5. Fructus, usually called Ususfructus, the further right of leasing 
the thing and selling its fruits.  Habitatio, Usus, Ususfructus 
were usually estates for life, and, unlike real servitudes, implied 
Detention of the subject; Possession of the subject, as opposed 
to Detention, remaining in the proprietor. For the modes of 
ereating and vindicating servitudes, see $ 28-§ 83; 4, § 88, 
comm. 

For pignus, see 3 § 90, commentary. 

Superficies is the right of a person who has bought a house 
without the ground on which it stands, or who has built a house 
on another's ground with his permission, a house, that 1s, which at 
gentile law, by the rule of Accession, is the property of the pro- 
prietor of the soil. The Praetor, however, recognized in the super- 
ficiarius a jus in re which he protected by an interdict de superficie 
and an actio in rem utilis. 

For emphyteusis, see 8 § 145. Although an emphyteusis might 
be of unlimited duration, and was alienable without the consent of 
the proprietor, yet the proprietor had a reversion on failure of the 
heirs of the emphyteuta, just as the feudal lord of a fee has the 
reversion on failure of the heirs of the tenant in fee. Accordingly, 
emphyteusis is regarded as the model on which feudal tenure was 
institated. This reversion or escheat to the lord of the fee makes 
property in land theoretically imperfect, and, like emphyteusis, 
rather a jus in re aliena than plenary dominion. Property in 
chattels, on the contrary, has no reversioner interposed between 


the proprietor and the sovereign as ultimus heres, and, therefore, is 18 
abeolute. 





158 DE REBUS SINGULIS. [rr. $$ 15-27. 


The Incorporeal hereditaments of English law generally cor- 
respond to the Servitutes and jus in re aliena of Roman law. 
But the principle: Servitutum non ea natura est ut aliquid faciat 
quis, sed ut aliquid patiatur aut non faciat, D. 8, 1, 15, 1: * Servi- 
tudes are not a right to a performance but to a permission or 
forbearance:? would exclude from the class of Servitudes some 
members of the class of Incorporeal hereditaments; e.g. Rents, 
which are said to lie in render, i.e. to involve a performance of 
the party burdened, not in prender, i.e. not to consist in an act 
of the party entitled. Roman law adhered strictly to the principle 
that Real rights, or rights against the world, can only correlate 
to negative obligations, duties of forbearance; and that rights 
correlating to positive obligations, or duties of performance, can 
only be Personal ; i.e. can only regard a particular individual and 
his universal successors. 

Having described the various kinds of real nght (jus in rem), 
ie. dominion and its fractions (jura in re), we proceed to the 
TITLES of real rights, that is to say, the events to which these 
rights are annexed by the legislator; in other words, the modes 
prescribed by the legislator by which such rights may be acquired ; 
in other words, the legislative definitions of the classes of persons 
in whom such rights are declared to be vested. 

The Titles of real rights are divisible into Titles by which single 
real rights are acquired and Titles by which aggregates of rights 
(universitates jurum) are acquired. 

Titles by which single real rights are acquired. are divisible into 
Titles sanctioned by the civil law and Titles sanctioned by natural 
(gentile) law (jus gentium), natural law denoting the rules intro- 
duced by praetors and jurists as consonant to the general reason 
of mankind. 

Titles by civil law are mancipatio, in jure cessio, usucapio, tra- 
ditio, and others which will be mentioned. Titles by natural law 
are traditio, occupatio, accessio, and others which will be men- 
tioned. We commence with Titles by civil law, and the intro- 
duetory propositions which are partly illegible in the manuscript of 
Gaius may be supplied from Ulpian, Regulae, 19, 1, or Gaius, 
1 $120. 

Res mancipi are individualities as opposed to fungible things, 
things without individual character, such as sheep, swine, corn, or 
money, 


m1. §§ 15-27.] RERUM C. ADQUISITIONES CIVILES. 159 


RERUM CORPORALIUM ADQUISITIONES CIVILES. 


$15. Item stipendiaria praedia 
et tributaria nec mancipii | sunt. 
sed quod diximus—— ——|mancipii 
esse | statim ut nata 
sunt mancipi esse putant; Nerua 
uero et Proculus et ceteri diuersae 
scholae auctores non aliter ea man- 
cipti esse putant, quam si domita 
sunt; et si propter nimiam ferita- 
tem domari non possunt, tunc ui- 
deri mancipti esse incipere, cum ad 
eam aetatem peruenerint, qua do- 
mari solent. 

$ 16. Item ferae bestiae nec man- 
cipi sunt uelut ursi, leones, item 
ea animalia quae fere bestiarum 
numero sunt, ueluti elephanti et 
cameli; etideo ad rem non pertinet, 
quod haec animalia etiam collo dor- 
soue domari solent; nam ne nomen 
quidem eorum animalium illo tem- 
pore (notum) fuit, quo constitue- 
betur quasdam res mancipti esse 
quasdam nec mancipii. 

$17. Item fere omnia quae incor- 
poralia sunt, nec mancipti sunt, ex- 
ceptis seruitutibus praediorum rus- 
ticorum; nam eas mancipil esse 
constat, quamuis sint ex numero 
rerum incorporalium. 

$18. Magna autem differentia 
est inter mancipii res et nec man- 
cipi 

$ 19. Nam res nec mancipzi ipsa 
traditione pleno iure alterius fiunt, 
si modo corporales sunt et ob id 
recipiunt traditionem. 








$20. Itaque si tibi uestem uel 
aurum uel argentum tradidero siue 
ex uenditionis causa siue ex dona- 
tionis siue quauis ali» ex causa, 
statim tua fit ea res, si modo ego 
eius dominus sim. 


$21. In eadem causa sunt pro- 
uincialis praedia, quorum alia sti- 


$ 15. Stipendiary and tributary 
estates are also not mancipable. 
Accordmg to my school animals 
which: are generally. tamed are 
mancipable as soon as they are 
born; according to Nerva and 
Proculus and their followers, such 
animals are not mancipable until 
tamed, or if too wild to be tamed, 
until they attain the age at which 
other individuals of the species are 
tamed 


§ 16. Things not mancipable in- 
clude wild beasts, as bears, lions; 
and semi-wild beasts, as elephants 
and camels, notwithstanding that 
these animals are sometimes em- 
ployed for draught or carriage; for 
their name was not even known at 
the time when the distinction be- 
tween res mancipi and nec mancipi 
was established. 


$17. Also things incorporeal, 
except rustic servitudes on Italian 
soil. 


' $18. There is an important dif- 
ference between things mancipable 
&nd things not mancipable. 

$19. Complete ownership in 
things not mancipable is transferred 
by mere delivery of possession, if 
they are corporeal and capable of 
delivery. 

§ 20. Thus when possession of 
clothes or gold or silver is deli- 
vered to a vendee or donee or a 
person otherwise entitled, the pro- 
perty passes at once by the mere 
act of prehension, if the person 
who conveys is proprietor. 

§ 21. Similarly transferrible are 
estates in provincial lands, whether 








160 


pendiaria alia tributaria uocamus. 
stipendiaria sunt ea quae in his 
prouincás sunt, quae propriae 
populi Romani esse intelleguntur ; 
tributaria sunt ea quae in his pro- 
uinciis sunt, quae propriae Caesaris 
esse creduntur. 

$ 22. Mancipti uero res sunt 
quae per mancipationem ad alium 
transferuntur ; unde etiam man- 
cipti res sunt dictae. quod autem 
ualet (mancipatio, idem ualet et in 
ture cessto. 

$ 23. Et) mancipatio quidem 
quemadmodum fiat, superiore com- 
mentario tradidimus. 

$ 24. In iure cessio autem hoc 
modo fit: apud magistratum populi 
Romani, ueluti praetores, is cui 
res in lure ceditur, rem tenens ita 
dicit HYNC EGO HOMINEM EX IVBE 
QVIBITIVM MEVM ESSE AIO; deinde 
postquam hic uindicauert, praetor 
interrogat eum qui cedit, an contra 
uindicet; quo negante aut tacente 
tunc ei qui uindicauerit, eam rem 
addicit ; idque legis actio uocatur. 
hoe fieri potest etiam in prouinciis 
apud praesides earum. 


§ 25. Plerumque tamen et fere 
semper  mancipationibus utimur. 
quod enim ipsi per nos praesentibus 
amicis agere possumus, hoc non est 
necesse cum maiore difficultate 
apud praetorem aut apud praesidem 
prouinciae agere. 


§ 26. Quodsi neque mancipata 
neque in iure cessa sit res man- 
cipti 

(6 uersus in C legi nequeunt). 

*plena possessio concessa 
ex formula qua hi qu | 
fructus na . 
§ 27. Item adhuc i | 
(4 wersus in C legi nequeunt) — 
[non fuissent ———— | 





























. DE REBUS SINGULIS. 


[nr. $$ 15-27. 


stipendiary or tributary; stipen- 
diary being lands in provinces sub- 
ject to the dominion of the people 
of Rome; tributary, lands in the 
provinces subject to the dominion 
of the Emperor. 


§ 22. Property in things manci- 
pable, on the contrary, is conveyed 
by mancipation, whence their name, 
or—a universally applicable mode 
of transfer—by surrender before a 
magistrate ina fictitious vindication. 

§ 23. The process of mancipation 
was described in the preceding 
book (1 $ 119 8). 

$ 24. Surrender in a fictitious 
vindication is in the following form : 
in the presence of some magistrate 
of the people of Rome, such as a 
praetor, the surrenderee grasping 
the subject says: I cuaim THIS 
SLAVE AS MY PROPERTY BY TITLE 
QuiniTARY. Then the praetor inter- 
rogates the surrenderor whether he 
makes & counterclaim, and upon 
his disclaimer or silence awards 
the thing to the demandant. This 
proceeding is called & statute- 
process and can now be performed 
before the president of an imperial 
province. 

$ 25. Generally, however, and 
almost always the method of man- 
cipation is preferred; for why 
should a result that can be accom- 
plished in private with the assist- 
ance of our friends be prosecuted 
with greater trouble in the court 
of the praetor or president of the 
province 1 

$ 26. If neither mancipation nor 
judicial surrender is employed in 
the conveyance of a mancipable 
thing . 


1.$$15-27.] RERUM C. ADQUISITIONES OIVILES. 161 


(7 uersus in C legi nequeunt) 
—————| lest quo nomine 
ere uel 
praedium— ———|dem ulla libera 
ciuitas —-  admo|nendi sumus | 
esse prouincialis soli nexum non e 
——|significationem solum Jtalicum 
mancipti est, projuinciale nec man- 
cipal est. aliter enim ueteri lingua 


mancipa—}, 




















Of civil Titles the oldest were probably in jure cessio and usu- 
capio, the one public, the other private, the one containing an act 
of a political authority, the other subordinate and supplementary 
to this, and though equally effectual where it applied, yet not quite 
80 extensive in its application. 

In jure cessio or surrender before a magistrate cannot fail to 
recall to an English lawyer two similar modes of alienation that 
recently existed in English jurisprudence, alienation by Fine and 
alienation by Recovery, both of which, like in jure cessio, were 
based on a fictitious action; in both of which, that is to say, 
although the parties did not really stand in the relation of adverse 
litigants, the alienee was supposed to recover an estate by process of 
law. By & Fine, an action commenced against the alienor and at 
once terminated by his acknowledging the right of the alienee, a 
tenant in tail could aliene the fee simple, so far at least to bar 
his own issue. By a Recovery, a tenant in tail could convey an 
absolute estate in fee. This was an action supposed to be, not like 
a Fine immediately compromised, but carried on through every 
regular stage to the conclusion; whereby the alienee recovered 
judgment against the alienor, who in his turn recovered judgment 
against an imaginary warrantor whom he vouched to warranty (cf. 
laudat auctorem, 8 $ 141, comm.). Another employment of fictitious 
action in English law as a solemn form, not of alienation but of 
contract, a title, consequently, not of jus in rem but of jus in personam, 
namely, the Judgment Debt (see 8 $ 184, comm.), has no parallel in 
Roman jurisprudence of the classical period : though in earlier times 
the Nexum, expressing the obligation of the promisor by the term 
Damnas, i.e. condemnatus, apparently placed him in the position 
of a judgment debtor (pro judicato), and rendered him liable to the 
most rigorous form of execution (manus injectio). 

In jure cessio to a late period was the principal mode of manu- 

M 


162 . DE REBUS SINGULIS. [nr $$ 15-27. 


mitting slaves, and a part of the process of emancipation, that is, 
the release of & son from the patria potestas, 

To relieve the magistrate and the parties from the troublesome 
process of in jure cessio, a new mode of conveyance, by bronze and 
balance (nexum, mancipium, per aes et libram), which did not 
require the intervention of a public functionary, was introduced at 
some subsequent period, but confined to the alienation of certain 
specific subjects of property. The things capable of this mode of 
alienation were at first, probably, only the ordinary booty of a 
predatory tribe, slaves and the larger kinds of cattle; but after- 
wards included land, rustic servitudes, and the familia or univer- 
sitas jurum of a testator, 2 $ 104, Not only slaves, but liberae 
personae of an inferior domestic status, filiusfamilias and filiafami- 
lias, were subject to conveyance by mancipation. By this process, 
a genuine sale for a valuable consideration, a father could sell his 
son into domestic bondage (mancipium): by this process, reduced to 
the state of a fiction, a woman became subject to the manus of a 
husband (coemptio), and a filiusfamilias was adopted (adoptio) or 
emancipated (emancipatio). | 

Mancipation, as conveying property without possession, 4 § 131, 
may be compared to a Deed in English law; and, like the cor- 
responding English solemnity, might be used as a formality either 
of alienation or of contract, 8 § 173; or, if we take contract in a 
wider sense as equivalent to bilateral disposition, of contract either 
translative or obligative. After the introduction of mancipation 
mancipable things were the most easily alienable: they could be 
aliened by mancipation as well as by surrender in court and usu- 
capion, whereas not-mancipable things were only alienable by the 
two latter modes of transfer. 

At a later period, however, in order to facilitate the transfer of 
property in those cases where it was most difficult, a new and still 
simpler process was introduced, namely, tradition or the delivery of 
possession. In such not-mancipable things as were corporeal, the 
transfer of possession or physical dominion, that is, the exclusive 
power of acting corporeally on a given body, a title in gentile 
law, was declared by the legislator to be a title in civil law, to 
operate a transfer of legal or civil dominion, dominion ex jure 
Quiritium, Thus the tables were now turned: things, which for- 
merly were most difficult, were now most easy to aliene: the term 
mancipable, which before denoted an enlargement of the powers of 


n.$15-27.] RERUM C. ADQUISITIONES CIVILES. 163 


alienation, now denoted a restriction; for mancipable things were 
things alienable either by surrender or by usucapion or by the 
eumbrous process of mancipation, but not by tradition ; not-man- 
eipable things were things alienable (such of them at least as were 
corporeal) either by surrender or by usucapion or by the simple 
process of tradition, though not by mancipation. 

Perhaps, however, the tradition of some res nec-mancipi, j.e. 
non-individual things, is coeval with the alienation of res-mancipi ; 
and, though not mancipable, non-individual things were always 
easier to aliene than res mancipi. Mancipatio, as being a sale, 
and therefore implying the transfer of money, i.e. of res nec-mancipi, 
is essentially posterior to alienation of money by delivery of posses- 
sion. The alienative power of tradition by the natural code, must 
be more primeval than the Formal dispositions; for tradition with 
solvendi animus (venditio) is simulated by formal alienation (man- 
eipatio), and tradition with mutuandi animus (mutuum) is simulated 
by Nexum. 

In respect of land the title in English law corresponding to 
tradition is Feoffment, The essence of a feoffment is livery of 
seisin (delivery of possession), and though subsequently a deed was 
always added, yet, originally, livery of seisin was a valid transfer 
of property without an accompanying deed. 

We proceed to notice minor points in the text of Gaius. We 
have hitherto spoken of tradition as a title whereby property was 
acquired. Tradition, however, was only an element, usually the 
final element, of the complex mode of acquisition to which it gives 
its name.  'T'o be capable of passing property, tradition must be ac- 
companied by another element, usually an antecedent element, some 
contract or other source of obligation, or some evidence of intention 
to aliene. The same was true of usucapion. Besides possession 
for a certain term it was requisite that possession should have had 
an innocent inception or belief of the possessor that he had a right 
to take possession (bona fides). The second condition of acquisition 
was indicated by the preposition pro governing a noun or participle; 
the bona fide possessor was said to possess pro emptore, pro donato, 
pro legato, pro derelicto, &c. The condition itself was called the 
causa (§ 20), or justa causa, or titulus, of the usucapion; and we 
how may notice the exact relation of the word Title as used in this 
eommentary to the Titulus of the classical jurists. Title, as used 
by Austin and as used in this commentary, denotes the totality of 

M2 


164 DE REBUS SINGULIS. rr. $$ 15-27. 


the complex conditions to which the law annexes any right, in rem 
or in personam : titulus as used by the classical jurists is only one 
portion of the mode of acquisition called Usucapion. "Titulus usu- 
capionis, D. 41, 9, 1, was any disposition capable of conferrmg 
ownership which failed in some instance to confer ownership in con- 
sequence of the absence of some particular condition. 

Instead of denoting the whole of a complex investitive fact, it 
denotes in their writings only a constituent part of this fact: it 
merely denotes the fact by which the acquisition begins, as contra- 
distinguished from the fact by which the acquisition is completed. 

§ 21. The system of taxation which Rome imposed on her 
provinces demands a brief notice. Under the Republic different 
provinces were subject to different systems, but with the Empire 
a tendency to uniformity of taxation commenced: the distinction 
of tributary and stipendiary provinces was merely nominal in the 
time of Gaius, and it ceased entirely in the time of Pomponius and 
Ulpian. As early, probably, as from the time of Marcus Aurelius, 
under whom Gaius flourished, the following system of direct taxation 
was uniformly established throughout the Roman world. 

Direct taxation was of two kinds: it embraced (1) a poll tax or 
capitation tax, i.e. a tax on persons (capitis tributum), and (2) a 
tax on land (agri tributum). The tax on persons (capitatio humana) 
was a fixed sum, probably of small amount, that was only levied on 
persons who were not liable to the land tax, on tributarii as opposed 
to possessores. It was chiefly contributed by three classes, (1) tenant 
farmers of & semi-servile condition (coloni), (2) artisans and labourers, 
(3) slaves. From this capitation tax were exempted all who had 
the rank of municipal senators (decuriones, curiales, ordo), even 
though they were not possessores. From the classes on whom it was 
levied, capitatio humana was sometimes called capitatio plebeia. 

The tax on landholders (possessores) was also called capitation 
(capitatio terrena). The reason of this will appear when we explain 
the mode in which it was levied. The whole territory was ideally 
divided into units of taxation (capita, juga), districte varying in size 
aecording to the nature of the soil, each having an estimated 
capital value of 1000 solidi or aurei, and hence called millena. 
From these capita or juga the land tax derived its name of capitatio 
or jugatio. The list of capita was called a Cadastre (capitastrum), 
and was revised every fifteen years (one of the earliest land valua- 
tions, made by order of Augustus, is mentioned by St. Luke, 2, 1). 


11. § 28-39.] RERUM INO. ADQUISITIONES CIVILES. 165 


Every year, as soon as the Minister of Finance had settled the 
budget of expenditure, proclamation (indictio, delegatio) was made 
of the amount of taxes required, or rather, the total being divided 
by the number of capita, of the amount to be paid by each caput. 
Each caput paid the same sum. The financial year commenced on 
lst of September; and the tax was payable in three mstalments, 
on the Ist days of the following January, May, and September. 
Besides the money tax, and proportioned to it, landowners had 
to pay a certain tax in raw produce (annona). 

Italy and the privileged towns that enjoyed Jus Italicum were 
exempt from both these forms of direct taxation; jus Italicum 
eonsisting, as we have stated, of three elements, (1) free municipal 
constitution, (2) capacity in the soil of quiritary ownership, and (3) 
immunity from both kinds of direct taxation, jugatio humana and 
jugatio terrena. Italy, however, with the exception of the district 
about Rome, was subject to certain payments in kind (annona), 
whence its division into Italia annonaria and Italia urbicaria. 
According to some, Italia urbicaria contributed to the use of the 
metropolis payments similar to those which Italia annonaria paid 
to the imperial household. Moreover, to compensate for. her im- 
munity from other taxation, Italy paid 5 per cent. on all testa- 
mentary successions (vicesima hereditatum) and 5 per cent. on 
the value of all manumitted slaves, Livy, 7, 16. Under Diocletian 
Italy lost her immunities and was reduced to the condition of a 
province. Savigny, Vermischte Schriften, 16. 

§ 24. The legati Caesaris or Presidents of imperial provinces had 
originally no jurisdiction to preside over legis actio, but this was 
afterwards conferred upon them, Tac. Ann. 12, 60. 

§ 26. Gaius probably explained in this place the effect of delivery 
of a res mancipi and then went on to treat of the jus commercii. 


RERUM INCORPORALIUM ADQUISITIONES CIVILES. 


$28. (Hes) incorporsles tradi- 
tionem non recipere manifestum 
es. 

§ 29. Sed iura praediorum urban- 
orum in iure cedi (£antwn) possunt; 
rasticorum uero etiam mancipari 
possunt. 


$30. Vsusfructus in iure ces- 
sionem tantum recipit. nam do- 
minus proprietatis aldi usumfruc- 


$ 28. Incorporeal things are ob- 
viously incapable of transfer by 
delivery of possession. 

$ 29. Urban servitudes can only 
be created by surrender in a fic- 
titious vindication; rustic servi- 
tudes may either be acquired by 
this method or by mancipation. 

$ 30. Usufruct can only be 
created by surrender in a fictitious 
vindication, <A usufruct surren- 





166 


tum in iure cedere potest, ut ille 
usumfructum habeat et ipse nudam 
proprietatem retineat. ipse usu- 
fructuarius in iure cedendo domino 
proprietatis usumfructum efficit, ut 
& se discedat et conuertatur in pro- 
prietatem ; alti uero in iure cedendo 
nihilo minus ius suum retinet; cre- 
ditur enim ea cessione nihil agi. 


§ 31. Sed haec scilicet in Italicis 
praediis ita sunt, quia et ipsa 
praedia mancipationem et in iure 
cessionem recipiunt. alioquin in 
prouincialibus praediis siue quis 
usumfructum siue ius eundi, agendi 
&quamue ducendi uel altius tollendi 
aedes aut non tollendi, ne luminibus 
uicini officiatur, ceteraque similia 
iur& constituere uelit, pactionibus 
et stipulationibus id efficere potest ; 
quia ne ipsa quidem praedia man- 
eipationem aut (in) iure cessionem 
recipiunt, 


§ 32. Sed cum ususfructus et 
hominum et ceterorum animalium 
constitui possit, intellegere debemus 
horum usumfructum etiam in pro- 
uinciis per in iure cessionem con- 
stitui posse. 

§ 33. Quod autem diximus usum- 
fructum in iure cessionem tantum 
recipere, non est temere dictum, 
quamuis etiam per mancipationem 
constitui possit eo, quod in manci- 
panda proprietate detrahi potest; 
non enim ipse ususfructus manci- 
patur, sed cum in mancipanda pro- 
prietate deducatur, eo fit ut apud 
alium ususfructus, apud alium pro: 
prietas sit. 


$ 34. Hereditas quoque in iure 
cessionem tantum recipit. 

$ 35. Nam si is ad quem ab in- 
testato legitimo iure pertinet here- 
ditas, in iure eam alti ante aditio- 


DE REBUS SINGULIS. 


[11. $$ 28-39. 


dered by the owner of the property 
passes to the surrenderee, leaving 
the naked property in the sur- 
renderor. A usufruct surrendered 
by the usufructuary to the owner 
of the property passes to the sur- 
renderee and is reannexed to the 
property. Surrendered to a stran- 
ger it continues in the usufructuary, 
for the surrender is deemed inoper- 
ative. 

$31. These modes of creating 
usufruct are confined to estates 
in Italian soil, for only these es- 
tates can be conveyed by manci- 
pation or judicial surrender. On 
provincial soil, usufructs and ser- 
vitudes of cattle way, carriage way, 
watercourse, raising structures, not 
raising structures, not obstructing 
lights, and the like, must be created 
by convention and stipulation ; for 
the estates themselves, the subject 
of these servitudes, are incapable of 
conveyance by mancipation or ju- 
dicial surrender. 

§ 32. In slaves and other animals 
usufruct can be created even on 
provincial soil by surrender before 


a magistrate. 


$ 338. My recent statement that 
usufruct was only conveyed by 
judicial surrender was not inac- 
curate, although it may to this 
extent be created by mancipation 
that we may mancipate the property 
and reserve the usufruct; for the 
usufruct itself is not mancipated, 
although the mancipation of the 
property and reservation of the 
usufruct separates the holder of the 
usufruct from the holder of the 
property. 

$ 34. Inheritances also are only 
alienable by judicial surrender. 

§ 35. If the person entitled in 
intestacy by agnation surrender the 
inheritance before acceptance, that 


1.$$28—-39.] RERUM INC. ADQUISITIONES CIVILES. 


nem cedat, id est antequam heres 
extiterit, proinde fit heres is cui in 
lure cesserit, ac si ipse per legem 
ad heredifatem uocatus esset; post 
obligationem uero si cesserit, nihilo 
minus ipee heres permanet et ob 
id creditoribus tenebitur, debita 
uero pereunt eoque modo debitores 
bereditarü lucrum faciunt ; corpora 
uero eius hereditatis proinde tran- 
seunt ad eum cui cessa est hereditas, 
ac si ei singula in iure cessa fuis- 
sent. 


$ 36. Testamento autem scriptus 
heres ante aditam quidem heredi- 
tatem in iure cedendo eam alii nihil 
agit; postea uero quam adierit si 
cedat, ea accidunt quae proxime 
diximus de eo ad quem ab intestato 
legitimo iure pertinet hereditas, si 
post obligationem ($n) iure cedat. 

$ 37. Idem et de necessariis he- 
redibus diuersae scholae auctores 
existimant, quod nihil uidetur in- 
teresse, utrum (aliquis) adeundo 
bereditatem fiat heres, an inuitus 
existat; quod quale sit, suo loco 
apparebit. sed nostri praeceptores 
putant nihil agere necessarium here- 
dem, cum in iure cedat hereditatem. 

$38. Obligationes quoquo modo 
eontractae nihil eorum recipiunt. 
nam quod mihi ab aliquo debetur, 
id si uelim tibi deberi, nullo eorum 
modo, quibus res corporales ad alium 
transferuntur, id efficere possum, 
sed opus est, ut iubente me tu ab eo 
&ipuleris ; quae res efficit, ut a me 
liberetur et incipiat tibi teneri; 
quae dicitur nouatio obligationis. 


$39. Sine hac uero noustione 
non poteris tuo nomine agere, sed 
debes ex persona mea quasi cognitor 
ant procurator meus experiri. 


167 


is to say, before his heirship is con- 
summated, the surrenderee becomea 
heir just as if he was entitled by 
&gnation; but if the agnate sur- 
renders after acceptance, in spite of 
the surrender he continues heir and 
answerable to the creditors, his 
rights of action are extinguished 
and thus the debtors to the estate 
are discharged of liability without 
payment, while the property in the 
corporeal subjects of the inheritance 
passes to the surrenderee just as if 
they were separately surrendered. 

§ 36. A devisee’s surrender before 
acceptance is inoperative: after ac- 
ceptance it has the operation just 
ascribed to the agnate's surrender 
of an intestate succession after ac- 
ceptance. 


$37. So has a surrender by a 
necessary successor according to the 
other school, because it seems im- 
material whether a man is a volun- 
tary or an involuntary successor (a 
distinction that will be explained 
hereafter): according to my school 
& necessary heir's surrender of the 
inheritance is inoperative. [3 $ 85.] 

§ 38. Obligations, in whatever 
way contracted, are incapable of 
transmission by either method. If 
I wish to transfer my claim against 
a third person, none of the modes 
whereby corporeal things are trans- 
ferred is effective: but I must order 
the alienee to bind the debtor by 
stipulation: whereupon my debtor 
is discharged of his debt to me and 
becomes liable to the alienee ; which 
transformation of a debt is called 
novation. 

$ 39. In default of such novation 
he cannot sue in his own name, but 
must sue in my name as my cognitor 
or procurator. 


$ 28. So incorporeal hereditaments in English law were said to 
lie in grant, not in feoffment, i.e. to be only conveyable by deed, or 


168 . .. DE REBUS SINGULIS. (rx. $$ 28-39: 


sealed writing ; whereas corporeal hereditamente were conveyable 
by feoffment, 1. e. by livery of seisin or delivery of possession. 

§ 80. Inalienability was no peculiar characteristic of Usufruct 
and other personal servitudes. Alienation of rights, or singular 
succession as opposed to inheritance or universal succession, was 
the exception not the rule. Dominion over res singulae was 
alienable but almost all other rights were intransferable. If we 
except the delatio of hereditas legitima, § 35, hereditas, as we shall . 
see, was inalienable: and what is said of Urban and Rural predial 
servitudes, $6 29, 30, refers to their creation, not to their alienation. 
In the law of Persons Patria potestas, 1 $184, and Tutela, 1 $168, 
could be transferred but only by judicial surrender (in jure cessio), 
i.e. & process which feigned that there was no transfer. Manus 
and mancipium could be extinguished but not transferred [Ihering, 
§ 82], except that, apparently, mancipium could be retransferred to 
the natural parent or mancipator, 1 § 132. 

§ 31. It appears that convention (pactio) alone unaccompanied 
by tradition or quasi tradition was capable of creating a servitude, 
in opposition to the general rule of Roman law, that convention 
ean only ereate at the utmost an obligation (jus in personam), and 
m order to create a jus in rem must be accompanied by delivery of 
possession. Other exceptional instances in which convention with- 
out any further accompaniment creates a jus in rem, that is, trans- 
fers either property or jus in re, are hypotheca (see 8 $ 91 comm.) 
and societas omnium bonorum (see 8 $ 148). Vangerow, however, 
holds, § 350, that pactio and stipulatio could not create a genuine 
servitus, enforcible against the serviens and his assigns (singular 
successors), but only an Obligatio, enforcible against the serviens 
and his heirs (universal successors): that in the time of Gaius this 
was all that could be accomplished; but that afterwards, when 
quasi traditio of res incorporalis was recognized as practicable, 
genuine Servitudes could be constituted by Quasi-tradition. 

The servitus altius tollendi, or the right of increasing the height 
of an edifice, is at first sight very enigmatical. My might of 
increasing the height of my building, and thus obstructing the 
lights of my neighbour, would seem to be part and parcel of my 
unlimited rights of dominion: and, if a dispute arose, one would 
think that the burden of proof would be on my neighbour, who 
would have to prove a special limitation of my rights as owner 
of a praedium serviens and a special right residing in himeelf as 


n.§§28-39.] RERUM INC. ADQUISITIONES CIVILES. 1609 


owner of a praedium dominans: that is to say, that instead of my 
having to prove a servitude or jus altius tollendi, my neighbour 
would have to prove a servitude or jus altius non tollendi. Cum 
eo qui tollendo obscurat vicini aedes quibus non serviat nulla 
competit actio, Dig. 8, 2, 9. ‘A man who by building obscures his 
neighbour's lights, unless subject to a servitude, is not actionable.’ 
Altius aedificia tollere, si domus servitutem non debeat, dominus 
ejus minime prohibetur, Cod. 8, 34, 8. ‘A man cannot be pre- 
vented from raising the height of his house unless it is subject 
to a servitude.’ The same rule is laid down in English law. 
‘By force of a grant or prescription a man may become entitled 
to maintain his windows in freedom from all obstruction. But 
in the absence of any grant and before the period has elapsed 
which suffices for the establishment of a prescriptive claim, it is 
competent to the owner of the adjoining land to construct a wall 
or house on it so near to the former as to intercept the light which 
it would otherwise have received; for his right to erect edifices 
on any part of his own soil is as clear as that of the first builder.’ 
Stephen, 1, 628. The following is the solution of the problem : 
The extinction of Rural and Urban servitudes was governed by 
different rules. The extinction of a Rural servitude was more 
easily accomplished than that of an Urban servitude: it was 
effected by simple non-user (non utendo) on the part of the 
dominant owner for a period, originally, of two years, afterwards 
of ten. The extinction of an Urban servitude demanded, besides 
the negative omission of use on the part of the dominant, a posi- 
tive possession of freedom (usucapio libertatis) on the part of the 
servient owner. Gaius thus explains the difference: in a servitus 
ne amplius tollantur aedes, or ne luminibus aedium officiatur, if the 
windows of the dominant house are closed with masonry there is 
a non-usus of the servitude on the part of the dominant owner; 
if in the same time the height of the servient house is raised there 
!s possession of freedom on the part of the servient owner. Or 
in a servitus tigni immissi, if the dominant owner removes the 
beam from his neighbour’s wall there is on his part non-usus; if 
the servient owner builds up the orifice in which the beam was 
inserted, there is on his part usucapio libertatis, D. 8, 2, 6. 
Originally Servitudes, like Dominion, could be acquired by Usu- 
capion ; and as the extinction of Urban Servitudes was governed 
by the same conditions, it was regarded by the jurists as an 


170 DE REBUS SINGULIS. [11.$$ 28-39. 


acquisition of an antagonistic servitude. On the extinction of a 
Rural servitude, the servient property simply recovered its original 
dimensions: an Urban servitude was a permanent diminution of 
the servient property, and on its extinction the servient property, 
instead of dilating to its original size, recovered what it had lost 
in the shape of the annexation of a contrary servitude. When at 
an unknown date the Usucapion of servitudes was abolished by 
a lex Scribonia, an exception was made in favour of these Contrary 
servitudes, which in fact were not genuine servitudes, but merely 
the expression of the greater difficulty of extinguishing an Urban 
servitude. Libertatem servitutum usucapi posse verius est, quia 
eam usucapionem sustulit lex Scribonia quae servitutem consti- 
tuebat, non etiam eam quae libertatem praestat sublata servitute, 
D. 41, 3, 4, § 28. ‘ Extinction of servitude by usucapion is admis- 
sible, for the usucapion abolished by lex Scribonia was usucapion 
whereby a servitude is constituted, not that which liberates by 
extinction of servitude, Thus he who laboured under a disability 
of building (jus altius non tollendi) was regarded on its extinction 
as having acquired the opposite easement, jus altius tollendi; he 
who was relieved of the servitus ne luminibus officiatur was re- 
garded as acquiring a jus officiendi luminibus vicini; he who was 
relieved from the servitus stillicidii avertendi in tectum vel aream 
vicini was deemed to acquire a jus stillicidii non avertendi, D. 8, 2, 2. 
It does not appear that the ordinary requisites of Usucapio, titulus 
and bona fides ($ 61 comm.), were required in this usucapio libertatis. 

In usucapio libertatis, a right being acquired, the ten years are 
complete on the commencement of the last day: in non usus, a 
right being lost, the ten years are not complete till the last day is 
terminated. Vangerow, § 353. 

The three servitudes, ne prospectui officiatur, ne luminibus offi- 
ciatur, ne altius tollatur, are similar in effect, but differ in their 
degree of extension. The servitus ne luminibus officiatur is not 
so extensive as the servitus ne prospectui officiatur, for that may 
amount to an obstruction of prospect which does not cause a 
diminution of light, D. 8, 2, 16 : but is wider than servitus altius 
non tollendi, because light may be intercepted by other causes than 
buildings, by plantation, for instance, though building is the prin- 
eipal means of interception, D. 8, 2, 4. 

Servitus luminum has been already noticed, §§ 1-14 comm., as 
apparently identical with jus luminis immittendi, i. e. the right of 


1. $$ 40—61.] DE USUCAPIONIBUS. 171 


having a window in a neighbour’s wall. Luminum servitute con- 
stitata id adquisitum videtur ut vicinus lumina nostra excipiat, 
D.8, 2, 4. * The easement of Lights entitles the owner of the domin- 
ant house to have a window in the wall of his servient neighbour. 

It appears from the above explanation that the servitus luminum 
and the servitus ne luminibus officiatur belong to different cate- 
gories, for the servitus luminum, like the jus officiendi luminibus, 
belongs to the category of jus habendi; while the servitus ne 
luminibus officiatur belongs to the category of jus prohibendi. 

$84. C£ 3, §§ 85-87. The statement that an inheritance is 
not mancipable may seem inconsistent with what we are after- 
wards told of the testament by bronze and balance, $ 102. There 
is; however, no real inconsistency. The subject mancipated in the 
will by bronze and balance, though a universitas, was not an 
inheritance—there was no inheritance to mancipate, for nemo est 
heres viventis—but the collective rights—familia, patrimonium— 
of the testator. 

$ 88. The mode of transferring obligations may be more properly 
eonsidered hereafter, when we examine the titles by which Jus in 
personam originates or terminates, 8 §§ 155—162 comm. Gaius 
glanced at the titles to Hereditas and Obligatio because he was 
treating of Res incorporales under which they are included; but 
he should have abstained from discussing Obligatio because he is 
now dealing with Jus in rem, and he should have abstained from 
discussing Hereditas because he is now dealing with Res singulae. 


DE USUCAPIONIBUS. 


$ 40. Sequitur ut admoneamus 
apud peregrinos quidem unum esse 
dominium ; nam aut dominus quis- 
que est, aut dominus non intelle- 
gitar. Quo iure etiam populus 
Romanus olim utebatur: aut enim 
ex iure Quirifóum unusquisque do- 
minus erat, aut non intellegebatur 
dominus, sed postea diuisionem 
accepit dominium, ut alus possit 
esse ex iure Quiritium dominus, 
alius in bonis habere. 

$ 41. Nam si tibi rem mancipii 
Beque mancipauero neque in iure 
eessero, sed tantum tradidero, in 
bonis quideni tuis ea res efficitur, 


$ 40. We must next observe that 
for aliens there is only one do- 
minion and only one definition of 
& proprietor, and so it was in an- 
cient times with the people of Rome, 
for a man had either quiritary do- 
minion or none at all. "They after- 
wards decomposed dominion so that 
one person might have quiritary 
dominion over a subject over which 
another person had bonitary do- 
minion. 

§ 41. If a mancipable thing is 
neither mancipated nor surrendered 
by default in a fictitious vindication 
but simply delivered, the bonitary 





172 


ex iure Quiritium uero mea per- 
manebit, donec tu eam possidendo 
usucapias; semel enim impleta usu- 
capione proinde, pleno iure incipit, 
id est et in bonis et ex iure Qui- 
ritium tua res esse, ac si ea man- 
cipata uel in iure cessa (esset. 


$ 42. Veucapto autem) mobilium 
quidem rerum anno conpletur, fundi 
uero et aedium biennio; et ita lege 
XiI tabularum cautum est. 


$ 43. Ceterum etiam earum rerum 
usucapio nobis conpetit quae non a 
domino nobis traditae fuerint, siue 
mancipti sint eae res siue nec man- 
eipii, si modo eas bona fide accepe- 
rimus, cum crederemus eum qui 
traderet, dominum esse. 


$ 44. Quod ideo receptum uidetur, 
ne rerum dominia diutius in incerto 
essent, cum sufficeret domino ad 
inquirendam rem suam anni aut 
biennü spatium, quod tempus ad 
usucapionem possessori tributum 
est. 


§ 45. Sed aliquando etiamsi max- 
ime quis bona fide alienam rem 
possideat, non tamen illi usucapio 
procedit, uelut si quis rem furtiuam 
aut ui possessam possideat; nam 
furtiuam lex xri tabularum usucapi 
probibet, ui possessam lex Iulia et 
Plautia. 


$ 46. Item prouincialia praedia 
usucapionem non recipiunt. 

$ 47. (Item olim) mulieris quae 
in agnatorum tutela erat, res man- 
cipti usucapi non poterant, praeter- 
quam si ab ipsa tutore (auctore) 
traditae essent; idque ita lege X1i 
tabularum cautum erat. 


DE REBUS SINGULIS. 


[1r. $$ 40—61. 


dominion passes to the alienee, but 
the quiritary dominion remains in 
the alienor until the alienee acquires 
it by usucapion; for as soon as 
usucapion is completed, plenary do- 
minion, that is, the union of boni- 
tary &nd quiritary dominion, vests 
in the alienee just as if he had 
taken by mancipation or surrender 
before & magistrate. 

$ 42. Usucapion of movables 
requires a year's possession for its 
completion, of land and houses, two 
years’ possession, a rule which dates 
from the law of the Twelve Tables. 

§ 43. Quiritary dominion may 
also be acquired by usucapion even 
on & non-proprietor's delivery of 
possession, and in things either 
mancipable or not mancipable, if 
they are delivered to an innocent 
alienee who believes the deliverer 
to be proprietor. 

$ 44. The reason of the law ap- 
pears to be the inexpediency of 
allowing dominion to be long un- 
ascertained, the original proprietor 
having ample time to look after his 
property in the year or two years 
which must elapse before usucapion 
is complete. 

$ 45. Some things, however, not- 
withstanding the good faith of the 
possessor, cannot be acquired by 
usucapion, things, for instance, of 
which the owner lost possession by 
theft or violence, stolen things being 
declared incapable of usucapion by 
the law of the Twelve Tables, and 
things taken with violence by the 
lex Julia and Plautia. 

$ 46. So, too, provincial land and 
houses are incapable of usucapion. 

$ 47. Formerly, when & woman 
was under her agnate's guardian- 
ship, her mancipable things were 
not subject to usucapion, unless she 
herself delivered possession of them 
with her guardian's authority, and 
this was an ordinance of the Twelve 
Tables, 


n. $§40-61.] 


§ 48. Item liberos homines et res 
sacras et religiosas usucapi non 

manifestum est. 

§ 49. Quod ergo uulgo dicitur 
furtiuarum rerum et ui possessarum 
usucapionem per legem Xl tabu- 
larum prohibitam esse, non eo per- 
tinet, ut ne ipee fur quiue per uim 
possidet, usucapere possit (nam huic 
alia ratione usucapio non competit, 
quia scilicet mala fide possidet); 
sed nec ullus alius, quamquam ab 
eo bona fide emerit, usucapiendi ius 
habeat. 

$ 50. Vnde in rebus mobilibus 
non facile procedit, ut bonae fidei 
possessori usucapio conpetat, quia 
qui alienam rem uendidit et tra- 
didit, furtum committit; idemque 
accidit etiam si ex alia causa tra- 
datur. sed tamen hoc aliquando 
aliter se habet; nam si heres rem 
defuncto commodatam aut locatam 
uel apud eum depositam, existimans 
eam esse hereditariam uendiderit 
aut donauerit, furtum non commit- 
tit; item si is ad quem ancillae 
ususfructus pertinet, partum etiam 
suum esse credens uendiderit aut 
donauerit, furtum non committit ; 
fartum enim sine adfectu furandi 
non committitur. aliis quoque mo- 
dis accidere potest, ut quis sine 
uitio furti rem alienam ad aliquem 
transferat et efficiat, ut a possessore 
usucapiatur. 


$ 51. Fundi quoque alieni potest 
aliquis sine ui possessionem nancisci, 
quae uel ex neglegentia domini 
uacet, uel quia dominus sine suc- 
cessore decesserit uel longo tempore 
afuerit ; guam si ad alium bona fide 
accipientem transtulerit, poterit usu- 
espere possessor; et quamuis ipse 
qui uacantem possessionem nactus 
est, intellegat alienum esse fundum, 
tamen nihil hoc bonae fidei possessori 
ad usucapionem nocet, (cwm) in- 
probata sit.eorum sententia, qui 


DE USUCAPIONIBUS. 


173 


$ 48. Free men, also, and things 
sacred or religious, are obviously 
not susceptible of usucapion. 

$49. The common statement that 
in things stolen or violently pos- 
sessed, usucapion is barred by the 
law of the Twelve Tables, means, 
not that the thief or violent dis- 
possessor is incapable of usucapion, 
for he is barred by another cause, 
his guilty knowledge; but that even 
an innocent purchaser from him is 
incapable of acquiring by usuca- 
pion. 

$ 50. Accordingly, in things 
movable an innocent possessor can 
seldom acquire dominion by usu- 
capion, because he that sells and 
delivers, or otherwise bargains and 
delivers, possession of a thing be- 
longing to another, is guilty of theft. 
However, this admits of exception, 
for an heir who believes a thing 
lent or let to, or deposited with, his 
ancestor to be a portion of the in- 
heritance, and sells it or gives it 
away, is not guilty of theft: again, 
the usufructuary of a female slave 
who believes her offspring to be his 
property and sells it or gives it 
away, is not guilty of theft; for 
theft implies unlawful intention : 
and similarly other circumstances 
may prevent the crime of theft from 
attaching to the delivery of a thing 
belonging to another, and enable 
the receiver to acquire by usu- 
capion. 

5 51. Land belonging to another 
may be entered without violence, 
when vacant by neglect of the 
owner, or by his death without 
leaving a successor, or his long 
absence from the country, and an 
innocent person to whom the pos- 
session is transferred may acquire 
the property by usucapion; for 
though the original seizer of the 
vacant possession knew that the 
land belongs to another, yet his 
knowledge is no bar to the usu- 





174 


putauerint furtiwwm fundum fieri 
posse. 


$52. Rursus ex contrario accidit, 
ut qui sciat alienam rem se pos- 
sidere, usucapiat, ueluti si rem here- 
ditariam, cuius possessionem heres 
nondum nactus est, aliquis posse- 
derit ; nam ei concessum (est usu)- 
capere, si modo ea res est quae 
recipit usucapionem ; quae species 
possessionis et usucapionis pro he- 
rede uocatür, 

§ 53. Et in tantum haec usu- 
capio concessa est, ut et res quae solo 
continentur, anno usucapiantur. 

§ 54. Quare autem hoc casu etiam 
soli rerum annua constituta sit usu- 
capio, illa ratio est, quod olim rerum 
hereditariarum possessione elut ip- 
eae hereditates usucapi credebantur, 
scilicet anuo. lex enim xii tabu- 
larum soli quidem res biennio usu- 
capi iussit, ceteras uero anno. ergo 
hereditas in ceteris rebus uidebatur 
esse, quia soli non est, quia neque 
corporalis est. (et) quamuis postea 
creditum sit ipsas hereditates usu- 
capi non posse, tamen in omnibus 
rebus hereditariis, etiam quae solo 
tenentur, annua usucapio remansit. 


$ 55. Quare autem omnino tam 
inprobe possessio et usucapio con- 
cessa, sit, illa ratio est, quod uolue- 
runt ueteres maturius hereditates 
adiri, ut essent. qui sacra facerent, 
quorum illis temporibus summa ob- 
geruatio fuit, et 4t creditores ha- 
berent, a quo suum consequerentur. 


$ 56. Haec autem species posses- 
sionis et usucapionis etiam lucratiua 
uocatur; nam sciens quisque rem 
alienam lucri facit. 


DE REBUS SINGULIS. 


[rr. $$ 40-61, 


capion of the innocent alienee, as 
it is no longer held that theft can 
be committed of land. 

$ 52. On the other hand, know- 
ledge of the existence of a pro- 
prietor (mala fides) does not always 
prevent usucapion, for any one may 
seize a portion of an inheritance of 
which the heir bas not yet taken 
possession and acquire it by usu- 
capion, provided it is susceptible of 
usucapion, and he is said to acquire 
by title of quasi successor. 

$ 53. With such facility is this 
usucapion permitted that even land 
may be thus acquired in a year. 

$ 54. The reason why even land 
in these circumstances demands only 
& year for usucapion is, that in an- 
cient times the possession of portions 
of the inheritance was held to be a 
means of acquiring the inheritance 
itself, and that, of course, in a year : 
for while the law of the Twelve 
Tables fixed two years for the usu- 
capion of land and one year for the 
usucapion of other things, an in- 
heritance was held to fall under the 
category of ‘other things,’ as it is 
neither land nor corporeal: and 
though it was afterwards held that 
the universal succession was not 
acquirable by usucapion, yet the 
component hereditaments, including 
land, continued acquirable by a 
year’s possession. 

§ 55. The motive for permitting 
at all so unscrupulous an acqui- 
sition was the wish of the ancient 
legislator to accelerate the accept- 
ance of successions, and thus pro- 
vide persons to perform the sacred 
rites, to which in those days the 
highest importance was attached, 
and to ascertain the persons whom 
creditors might sue for payment of 
their claims. | 

$ 56. This mode of acquisition 
is sometimes called gratuitous usu- 
capion, for the possessor has notice 
of another's ownership. 


n. $$ 40-61.] 


$57. Sed hoc tempore tam non 
est lucratina. nam ex auctoritate 
Hadriani senatusconsultum factum 
est, ut tales usucapiones reuocaren- 
tur. et ideo potest heres ab eo qui 
rem usucepit, hereditatem petendo 
proinde eam rem consequi, atque si 
usucapta non esset. 

$58. Necessario tamen herede 
extante nihil ipso iure pro herede 
nsucapi potest. 


$59. Adhuc etiam ex aliis causis 
&ciens quisque rem alienam usucapit. 
nam qui rem alicui fiduciae causa 
mancipio dederit uel in iure cesserit, 
si eandem ipse possederit, potest 
usucapere, anno scilicet, (etiam) 
soli si sit. quae species usucapionis 
dicitur usureceptio, quia id quod 
aliquando habuimus, recipimus per 
usucapionem. 


$ 60. Sed fiducia contrahitur aut 
eum creditore pignoris iure, aut cum 
amico, quo tutius nostrae res apud 
eum sint; et siquidem cum amico 
contracta sit fiducia, sane omni 
modo conpetit ususreceptio; 8i uero 
cum creditore, soluta quidem pecunia 
omni modo conpetit, nondum uero 
soluta ita demum conpetit, si neque 
conduxerit eam rem a creditore de- 
bitor, neque precario rogauerit, ut 
eam rem possidere liceret; quo casu 
lucratiua ususcapio conpetit. 


$61. Item si rem obligatam sibi 
Populus uendiderit eamque dominus 
posederit, concessa est ususrecep- 
tio; sed hoc casu praedium biennio 
usurecipitur. et hoc est quod uulgo 
dicitur ex praediatura possessionem 
üsurecipi; nam qui mercatur a po- 
pulo, praediator appellatur. 


DE USUCAPIONIBUS, 


175 


$ 57. In the present day, how- 
ever, it is ineffectual, for the Senate 
on the motion of Hadrian decreed 
that such usucapions are revocable, 
and the heir by suing for the in- 
heritance may recover possession 
just as if the property had never 
been transmuted. 

$ 58. A necessary heir is protected 
by the civil law against the loss 
of hereditaments by this usuca- 
pion. 

$ 59. There are other conditions 
under which a knowledge of an- 
other's ownership is no bar to usu- 
capion. After a fiduciary manci- 
pation or surrender of his property, 
if the owner subsequently has pos- 
session of it, he recovers his do- 
minion even over land in the period 
of a year, by what is called a pos- 
sessive recovery, because a foregoing 
dominion is thereby re-acquired, 

$60. The fiduciary alienee is 
either a creditor in the position of 
mortgagee or a friend and protector 
of the alienors property in the 
character of depositary: in the 
latter case the owner is always 
capable of possessive recovery: if 
the alienee is & creditor, the owner 
can always re-acquire after payment 
of the debt; but before payment of 
the debt he can only re-acquire 
provided he has not hired the thing 
of his creditor nor possessed it in 
consequence of request and licence, 
&nd thus he re-acquires without 
giving a consideration. 

§ 61. Again, the owner of a thing 
mortgaged to the state and sold for 
non-payment of the mortgage debt 
may re-acquire it by possession, but 
in this case, if it is land, usucapion 
is biennial: and this is the meaning 
of the saying, that after praediatura 
(a public sale) land is recoverable 
by (biennial) possession, a purchaser 
from the state being called praediator. 


§§ 40, 41. Roman law originally only recognized one kind of 


176 DE REBUS SINGULIS. (x. $$ 40-61. 


dominion, called emphatically, quiritary dominion. Gradually, 
however, certain real rights arose which, though they failed to 
satisfy all the elements of the definition of quiritary dominion, 
were practically its equivalent, and received from the courts a 
similar protection. These real rights might fall short of quiritary 
dominion in three respects, (1) either in respect of the persons in 
whom they resided, (2) or of the subjects to which they related, 
(3) or of the title by which they were acquired. 

(1.) To be capable of quiritary dominion a man must have one 
of the elements of a Roman citizenship. Jus quiritium, right 
. quiritary, sometimes, indeed, denotes all the elements of civitas 
Romana, Roman citizenship: see 8 § 75, 1 $ 35 comm. Beneficio 
principali Latinus civitatem Romanam accipit si ab imperatore jus 
quiritium impetraverit, Ulpian 3, 2. But the only element of 
citizenship required for quiritary dominion was commercium, and 
as we have seen that the Latinus possessed commercium without 
connubium, the Latinus was capable of quiritary dominion. The 
alien (peregrinus) on the contrary was incapable: yet he had an 
equivalent real right, called by Gaius dominion, § 40, which he 
acquired by titles of natural law (jus gentium), e.g. tradition, 
occupation, accession, praescriptio, &c., and could maintain by 
a real action in the court of the praetor peregrinus or praeses 
provinciae. 

(2.) Provincial land was not.capable of quiritary dominion. 
Originally, indeed, private dominion appears to have been confined 
to movables ; and immovables, at least lands, were only subject to 
the other kind of dominion, public dominion or communism. Pri- 
vate dominion, however, first invaded a portion of the land, to which 
it was confined within the historic period, and finally superseded 
public dominion over all the ancient Roman territory; and ager 
publicus, as opposed to ager privatus, ceased to exist on Italian soil. 
But in the provinces subsequently conquered, land continued to the 
end subject exclusively to public dominion; and thus the essential 
feature of feudal tenure, the exclusive vesting of absolute or ulti- 
mate dominion over land in the sovereign, a principle commonly 
supposed to have been first introduced into Europe by the invading 
German hordes, had already existed in full force over by far the 
greater portion of the Roman world. It is true that the provinces 
were divided into so-called ager publicus aud ager privatus; but 
ager privatus, as well as ager publicus, was subject to a vectigal, 





n. $$ 40—61.] DE USUCAPIONIBUS. 177 


and the tenant of the one and lessee of the other were equally 
devoid of absolute ownership. An estate in ager privatus was 
acquirable by titles of natural law (jus gentium) and recoverable by 
real action (vindieatio), and was sometimes called dominion; but 
was theoretically only possessio or ususfructus, $ 7. 

(3.) Bonitary dominion was distinct both from an alien's dominion 
and from dominion over provincial land : it may be defined as the 
property of à Roman citizen in a subject capable of quiritary pro- 
perty, acquired by a title not known to the civil law, but intro- 
duced by the praetor, and protected by his imperium or supreme 
executive power. We have seen, for instance, that only non-man- 
eipable things were capable at civil law of transfer by tradition ; 
suppose, now, that a mancipable thing were conveyed to a vendee 
by tradition; the process would not make him quiritary proprietor ; 
he would be no better than a bona fide possessor, until by the 
lapse of a year or of two years he acquired quiritary property by 
usucapion. The praetor, however, assisted the less cumbrous mode 
of alienation by treating the vendee as proprietor; by giving him, 
if in possession, the exceptio rei venditae et traditae against the 
vendor who sought to recover as quiritary proprietor, and enabling 
the vendee, if dispossessed, to recover against the quiritary pro- 
prietor as well as against any third person by utilis vindicatio, called 
actio Publiciana, in which he would meet the plea of quiritary 
ownership (exceptio dominii) by the replicatio rei venditae et traditae 
or by the replicatio doli. Bonitary proprietorship, or proprietorship 
acquired by titles unknown to the civil law, when once invented, 
was employed by the praetor in other legislative innovations, 
particularly, as we shall see hereafter, in creating universal succes- 
sions unknown to the civil law in bankruptey, and in testamentary 
and intestate devolution (bonorum possessio) These bonitary pro- 
prietors could assert their rights by an action, real or personal, based 
on a fiction of inheritance (formula Serviana, 4 $ 35), or an action, 
real or personal, not based on fiction, but in which they appeared 
as procurators of the original proprietor (formula Rutiliana, 4 $ 35). 

The barbarous term Bonitary (formed from the classical, in bonis 
esse, in bonis habere), has the authority of Theophilus, who speaks 
of beczórgs Bovirdpios, 1, 5, 4; he also calls bonitary dominion 
natural dominion.(¢votxy beamoreía), as opposed to statutory, civil, 
or quiritary dominion (évrouos deo7oreia). 

Actio Publiciana was the remedy in the alienation of anything 

N 


178 DE REBUS SINGULIS. [rr. $$ 40-61. 


whatever by a non-proprietor to an innocent alienee (bona fide pos- 
sessor) in case the latter lost possession of it. 

Usucapion, as in the case of bonitary ownership, would in the lapse 
of time have given the alienee plenary dominion, and, with it, vindi- 
eation in the event of a loss of possession ; but if he lost possession 
whilst usucapion was still incomplete, he would have had no real 
action (for, not being owner, he could not vindicate), if the praetor 
had not allowed him to sue by the actio Publiciana, which treated 
bona fide possession, that is, usucapion possession, or the inception 
of usucapion, as if it were plenary dominion in respect of every 
one except the rightful owner. The latter, however, could defend 
himself in this action successfully against a mere bona fide possessor 
by the exceptio dominii, or bring a vindication against a bona fide 
possessor who retained possession. 

§ 42. The usucapion of movables may be compared with the 
English law of Estrays. After proclamation in the church and 
two market towns next adjoining the place where they are found, 
the property in Estrays, i.e. tame animals whose owner is not 
known, vests in the crown or the lord of the manor, i.e. the grantee 
of the crown, on the expiration of a year and a day from the finding. 

§§ 52-60. A successor (heres) was either voluntarius, empowered 
to accept or reject the succession, or necessarius, designated without 
any such power of election. Heres voluntarius was either an 
agnate entitled to succeed an intestate, or any devisee, not being a 
child of the testator, entitled under a will. Heres necessarius was 
either a manumitted slave, or a self-successor (suus heres), that is, a 
child under power of the testator or intestate, § 152. In every 
ease of voluntarius heres, so long as the heir had not taken pos- 
session, any stranger was permitted to seize parte of the inherit- 
ance and acquire property therein by usucapion. The only title 
(causa, titulus) required for this aequisition was the overture or 
delation of the inheritance and vacancy of possession. This pos- 
session, which Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is 
more properly called pro possessore. Cf. 4, 144. ‘ Possessor, as 
possessor, is the occupant, who, asked why he possesses, answers, 
“ Because I possess,” and does not claim to be heir even mendaci- 
ously, and has no title of possession to allege.’ The constitution of 
Hadrian (Se. Juventianum D. 5, 3, 20, § 6) did not prevent the 
usucapion, but made it nugatory by allowing the heir to recover the 
hereditaments by real action (hereditatis petitio, or the interdict 


n. §§ 40-61.] DE USUCAPIONIBUS. 179 


Quorum bonorum), just as if the usucapion had never been com- 
pleted. 

Though the occupant of the vacant hereditament was called 
praedo, his possession, being encouraged by the lawgiver, was not 
unlawful until restitution was claimed, Savigny, § 264. This pos- 
session 1s probably the key to an enigmatical rule in Roman law: 
ipsum sibi causam possessionis mutare non posse, Dig. 41, 8, 33, 
$1; causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 
$1. ‘No man can change at pleasure his title of possession. With 
the intention, apparently, of limiting the operation of possessio pro 
possessore, an anomalous institution of questionable expediency, 
the rule declares that a person who commences his possession or 
detention of a thing in the character of a vendee from a non- 
proprietor, or as lessee, borrower, depositary, or even thief, shall 
not be able, on the death of the true proprietor, to accelerate or 
initiate usucapion by merely professing that he eeases to hold in his 
former character and proceeds to hold as possessor pro possessore. 

Possessio pro possessore was perhaps the germ of the intestate 
succession of next of kin er cognati, a succession, as we shall see, not 
originally recognized in Roman law ; at least, the family or next of 
kin of an intestate would generally have the best chance of seizing 
any movables or immovables that he left; and perhaps it was this 
equitable result, no less than the object mentioned by Gaius, that, in 
the absence of a regular succession of eognati, led the public to look 
on possessio pro possessore as a rational and salutary institution. 

The institution of usucapio pro herede and pro possessore, or 
rather the Sc. Juventianum by which it was defeated, has left its 
traces in the formula, still to be found in the Digest, of the interdict 
Quorum bonorum, the remedy whereby a person who claimed not 
as civil heir (heres), but as praetorian successor (bohorum possessor), 
established his right to succeed and recovered possession of the here- 
ditaments. See 4 $ 144. To leave these traces in the wording of the 
interdict was according to Vangerow no oversight on the part of 
Justinian, as although in his legislation the last remnants of the 
institution of usucapio pro possessore, that is by a mala fide pos- 
sessor, had been definitively abolished ; yet usucapio pro herede, that 
is, by a bona fide possessor, or one who sincerely though mistakenly 
held himself to be heir, was still recognized by jurisprudence, $ 820. 

$ 60. For fiducia cum creditore see 3 $$ 90, 91, comm., and for 
an example of fiducia cum amico see 1 § 182 comm, 

N 2 


180 DE REBUS SINGULIS. [n. $$ 40-61. 


§ 61. The circumstances contemplated seem to be as follows: A 
proprietor is debtor to the state, and his lands are mortgaged as 
security for the debt. On default of payment, the state exercises 
the power of sale: if the debtor is not turned out of possession by 
the purchaser (praediator) in two years he recovers his proprietorship 
by usureception. It seems that the sale by the state was merely the 
transfer of the mortgage; so that, if the debtor afterwards satisfied 
the purchaser, he recovered his land. Kuntze, Excursus, 436. 

Provincial lands were not subject to Usucapion: they might 
however be acquired by an analogous title, longi temporis prae- 
scriptio, Le. possession for ten years during the presence of the 
former proprietor (inter praesentes), and for twenty years during his 
absence (inter absentes). 

Usucapion required something beyond mere possession for a cer- 
tain period ; and something beyond what we hereafter call Interdict 
possession, 4 § 148. The conditions of possession which entitled 
& possessor to appeal for the protection of his possession to the 
praetor's interdict were merely that it should be adverse (with the 
knowledge of the other party and without his permission), and, in 
respect of the other party, commenced without violence (nec vi nec 
clam nec precario. To produce Usucapion (1) the thing to be ac- 
quired must be capable of usucapion, i.e. not taken by theft or 
violence from the former proprietor; (2) the possession of the 
usucapient must be based on a justa causa or titulus, such as con- 
tract or bequest ; (3) and commenced with bona fides on his part. 
Bona fides, in the case of original acquisition, e.g. usucapio pro 
derelicto, is à belief that the thing is res nullius, has no proprietor. 
In the case of derivative acquisition it is the belief that the auctor, 
or person from whom the thing is derived, is either proprietor or, 
if not proprietor, has a power of disposition as agent, guardian, 
mortgagee, or otherwise. Vangerow, $321. The Canon law requires 
during the whole period of prescription the bona fides which the 
Civil law only requires at the inception. 

Justinian remodelled the law of Usucapion. Cf.Inst.2, 6. For 
movables he extended the period from one year to three years: for 
immovables he abolished the distinction between Italian and pro- 
vincial land, and in every case required ten years’ possession if the 
parties were domiciled in the same province, and twenty years’ 
possession if they were not domiciled in the same province. Further, 
he introduced a new usucapion (longissimi temporis praescriptio), 


n. 6$ 40-61. ] DE USUCAPIONIBUS. 181 


which was governed by less stringent conditions than the ordinary 
usucapion (longi temporis praescriptio). It applied both to movables 
and immovables, was not vitiated by certain flaws in the subject 
(furtiva, violenta), and needed no support of any titulus, but only 
required bona fides in its inception on the part of the possessor, 
Cod. 7, 39, 8. It was completed in thirty years. 

Usucapion, particularly in this its later form, requires to be care- 
fully distinguished from the Limitation of actions (temporalis prae- 
scriptio) with which it has been coordinated by some civilians under 
the name of Acquisitive, as opposed to Extinctive, Prescription. We 
shall see, 4 $110, that all actions were originally divided into tem- 
porales and perpetuae, temporales being such as could only be brought 
within a certain period (e.g. in the case of penal actions, a year) from 
the time when the right of action accrued, perpetuae such as were 
subject to no such limitation. Subsequently, however, even the lat- 
ter were limited, and no action could be brought after thirty years 
from the nativity of the action or the time when the right of action 
accrued (actio nata) In the case of personal actions there is no 
danger of confusing Usucapion and Limitation. Usucapion implies 
possession, and in the case of personal actions, or jus in personam, 
no such thing as possession is conceivable, for possession only relates 
to the subjects of jus in rem. Usucapion and the Limitation of real 
actions are more similar, but even here a distinction may be recog- 
nized. ‘Limitation is the extinction of a right by neglect of the 
person entitled, by his omission to enforce his remedy : Usucapion 
is the aequisition of a right by something positive on the part of 
the acquirer, his strictly defined possession during a certain number 
of years. Even extraordinary Usucapion requires, as we have seen, 
bona fides in the commencement of possession : no such condition 
is attached to Limitation or temporalis praescriptio. 

English law originally only recognized Usucapion in the case of 
incorporeal hereditaments or servitudes, e.g. rights of way ; for the 
acquisition of which the Prescription Act, 2 and 3 Will. 4, c. 71, re- 
quires possession during twenty years. Moreover since the Act for the 
limitation of real actions, 3 and 4 Will. 4, c. 27, deprives a proprietor 
of land of his right as well as his remedy if he omit to bring his 
action to recover it within twenty years after the nght accrued (a 
limit which by the 37 and 38 Vict. c. 57 was reduced to twelve years), 
Usueapion (Acquisitive prescription) in corporeal as well as incor- 


poreal hereditaments may be said to be recognized in English law. 


182 DE REBUS SINGULIS. [1.85 40-61. 


Besides the civil titles which we have examined, two others are 
mentioned by Ulpian : Singularum rerum dominia nobis adquiruntur 
mancipatione, traditione, in jure cessione, usucapione, adjudicatione, 
lege, 19, 2. 

Adjudication (for the nature of which see 4 § 42), whereby pro- 
perty might be taken from one individual and vested in . another 
without any of the ordinary methods of conveyance, nay be com- 
pared in its operation to the vesting orders made by the Court of 
Chancery under the Trustee acts. When trustees are disabled by 
lunacy or infancy from dealing with the estates vested in them, the 
Court of Chancery is empowered to make orders the effect of which 
is that the estate becomes immediately vested in the substituted trus- 
tees as effectually as if a conveyance had been duly made by the per- 
son previously entitled to the legal estate. Another parallel is to be 
found in the awards of certain commissioners acting under powers 
given by act of parliament. Thus the order of the Inclosure commis- 
sioners for exchange and partition of land closely resembles in subject 
and effect the adjudicatio of a judex in the actio finium regundorum. 

Lex is an ambiguous and miscellaneous title. It includes title 
by escheat or forfeiture (caducum) under the lex Papia Poppaea, and 
bequest or legacy (legatum), a title deriving its validity from the 
lex of the Twelve Tables, Ulpian, 19, 17. Extending our view 
from res singulae, to which Ulpian -confines himself, to universi- 
tates, lex was an apt denomination of title by will at the period 
when wills required the ratification of the Comitia Calata, 2 $ 101, 
as at that time testamentary dispositions were really acts of the 
legislature. "Title by lex in this case may be compared to convey- 
ances by private act of parliament in English jurisprudence. 

It may assist to clear our conception of title if we observe that 
the title * Lege is ambiguous, and that (1) while one of its mean- 
ings implies an absence of all title, (2) another denotes a miscella- 
neous group of heterogeneous titles. 

(1) The only case in which Law can be said in any distinctive 
sense to be a cause of acquisition is privilegium or private law. 
The acquisition of a right by immediate grant from the sovereign 
(private act of the legislature, private act of parliament) is unlike 
the acquisition of a person entitled under some general disposition 
of a universal law. Acquisition by bequest or escheat is not an 
acquisition by law in any pre-eminent manner, but only in the same 
degree as is acquisition by mancipation or usucapion or any other 


1. $$ 40-61.] DE USUCAPIONIBUS. 183 


title, for all these acquisitions are equally founded on law or the 
general disposition of the legislator. But in acquisition by privi- 
legium there is properly speaking neither title nor law. Law is 
properly speaking a universal proposition, annexing a right or duty 
to a title: it knows nothing of individual persons, but stops short 
at classes of persons, classes, that i$, defined by the title. Again, 
title is properly speaking a contingent fact distinct from a corre- 
sponding law: a faet which may occur an indefinite number of 
times, and entitle, that is, invest with rights or duties, an indefinite 
number of persons, in accordance with the dispositions of one and 
the same unchanging law. Title, loosely and inaccurately defined 
as a fact investing a person with a right, would include a privilege, 
i.e. a law conferring a right immediately on a given individual 
without the intervention of a fact distinguishable from the law : 
but title, properly defined as an intervening fact through which 
a law confers a right mediately, excludes privilege. 

Whenever there is a genuine title and genuine law, the title is 
interposed between the right or duty and the person therewith in- 
vested, just as the middle term is interposed between the major and 
minor terms of a syllogism, E.g. All persons marked, stamped, 
eharacterized by a certain fact (B), are invested with a certain right 
or duty (À); a given individual person (C) bears the badge, mark, 
or stamp of this fact (B); therefore this individual (C) is invested 
with these rights or duties (A). A genuine law is only the major 
premiss, the universal proposition, all B is A. Theconclusion, C is 
A, stating the rights or obligations of the individual, is a mediate or 
dependent proposition, depending partly on the law and partly on an 
independent fact, the minor premiss C is B, which often requires to 
be ascertained by judicial investigation. The condition, represented 
by the middle term, which connects or disconnects the right or 
duty, represented by the major term, with a person, represented 
by the minor term, is the title. In a privilegium we have no such 
premisses and no such middle term. The conjunction of C with A, 
the investment of an individual with rights (or the disjunction of 
C from A, the spoliation of his rights), is here an ungrounded pro- 
position, unwarranted by any recognized title; in other words, un- 
supported by any subsumption of fact under law. 

(2) In Bequest and Escheat and the succession of necessarius 
heres there is a genuine law and a genuine title, but the law is not 
the title, any more than it is in any other mode of acquisition. 


184 DE REBUS SINGULIS. [rr. $$ 40-61. 


Either because these modes include fewer voluntary acts than some 
closely allied modes (for instance, the necessarius heres acquires 
without aditio, which is a parcel of the title of voluntarius heres), 
or for some other reason, divers modes are lumped together under 
the head of acquisition by lex. The name, however, besides being 
a misnomer, is merely a sink or receptacle of miscellaneous un- 
related titles, just as we shall find in the doctrine of obligations 
that miscellaneous titles (variae causarum figurae) are lumped 
together under the denomination of quasi-contract. 


ADQUISITIONES DOMINII NATURALES. 


$ 65. Ergo ex his quae diximus 
apparet quaedam naturali ure 
alienari, qualia sunt ea quae tradi- 
tione alienantur; quaedam ciuili, 
nam mancipationis et in iure ces- 
sionis et usucapionis ius proprium 
est cluium Romanorum. 

$66. Nec tamen ea tantum quae 
traditione nostra fiunt, | naturali 
nobis ratione adquiruntur, sed 
etiam—| occupando ideo—erimus, 
quia antea, nullilus essent ; qualia 
sunt omnia quae terra mari caelo 
capiuntur. 

$67. Itaque si feram bestiam aut 
uolucrem aut pis|cem————cap- 
tum eousque nostrum esse 
intellegitur, donec nostra custodia 
coerceatur ; cum uero custodiam 
nostram euaserit et in naturalem 
libertatem se receperit, rursus occu- 
pantis fit, quia nostrum esse desinit ; 
naturalem autem libertatem recipere 
uidetur, cum aut oculos nostros 
euaserit, aut licet n conspectu sit 
nostro, difficilis tamen etus perse- 
cutio sit. 








$ 68. In Ais autem animalibus 
quae ex consuetudine abire et redire 
solent, ueluti columbis et apibus, 
item ceruis qui in siluas ire et 
redire solent, talem habemus regu- 
lam traditam, ut si reuertendi ani- 
mum habere desierint, etiam nostra 
esse desinant et fiant occupantium ; 


$ 65. Thus it appears that some 
modes of alienation are titles of 
natural law, as delivery of posses- 
sion, and others of civil law, as 
mancipation, surrender, usucapion, 
for these are titles confined to 
citizens of Rome. 

$ 66. Another title of natural 
law, besides Tradition, is Occupa- 
tion, whereby things not already 
subjects of property become the pro- 
perty of the firstoccupant, asthe wild 
inhabitants of earth, air, and water, 
as soon as they are captured. 

$ 67. For wild beasts, birds, and 
fishes, as soon as they are captured, 
become, by natural law, the pro- 
perty of the captor, butonly continue 
such so long as they continue in 
his power ; after breaking from his 
custody and recovering their natural 
liberty, they may become the pro- 
perty of the next occupant ; for the 
ownership of the first captor is ter- 
minated. Their natural liberty is 
deemed to be recovered when they 
have escaped from his sight, or, 
though they continue in his sight, 
when they are difficult to recapture. 

$ 68. In those wild animals, how- 
ever, which are habituated to go 
away and return, as pigeons, and 
bees, and deer, which habitually 
visit the forests and return, the rule 
has been handed down, that only 
the cessation of the instinct of re- 
turning is the termination of owner- 


1. §§65-79.] ADQUISITIONES DOMINII NATURALES. 


reuertendi autem animum uidentur 
desinere habere, cum reuertendi 
consuetudinem deseruerint. 


$69. Ea quoque quae ex hostibus 
eapiuntur, naturali ratione nostra 
fiunt. 

$ 70. Sed et id quod per adluui- 
onem nobis adicitur, eodem iure 
nostrum fit; per adluuionem autem 
id uidetur adici quod ita paulatim 
flumen agro nostro adicit, ut aesti- 
mare non possimus, quantum quoquo 
momento temporis adiciatur; hoc est 
quod uulgo dicitur per adluuionem 
id adici uideri quod ita paulatim 
adicitur, ut oculos nostros fallat. 

$71. Itaque si flumen partem 
aliquam ex tuo praedio reaciderit et 
ad meum praedium pertulerit, haec 
pars tua ma|net. 

$ 72. A£si in medio flumine in- 
sula nata sit, haec eorum omnium 
communis est qui ab utraque parte 
fluminis prope ripam praedia possi- 
den£; si uero non slt in medio flu- 
mine, ad eos pertinet qui ab ea 
parte quae proxima est, iuxta 
ripam praedia habent. 

$ 73. Praeterea id quod in solo 
nostro ab aliquo aedificatum est, 
quameis ille suo nomine aedifica- 
werit iure naturali nostrum fit, 
quia superficies solo cedit. 


$ 74. Multoque magis id accidit et 
in planta quam quis in solo nostro 
posuerit, si modo radicibus terram 
conplexa fuerit. 

$ 75. Idem contingit et in fru- 
mento quod in solo nostro ab aliquo 
satum fuerit. 

$ 76. Sed si ab eo petamus 
fundum uel aedificium, et inpensas 
in aedificium uel in seminaria uel 
in sementem factas ei soluere noli- 
mus, poterit nos per exceptionem 
doli mali repellere, utique si bonae 
fidei possessor fuerit. 


185 


ship, and then the property in them 
is acquired by the next occupant ; 
the instinct of returning is held to 
be lost when the habit of returning 
is discontinued. 

$ 69. Capture from an enemy is 
another title of property by natural 
law. 

$ 70. Alluvion is another mode 
of acquisition by the same code. 
Alluvion is an addition of soil to 
land by a river, so gradual that in 
short periods the change is imper- 
ceptible; or, to use the common ex- 
pression, a latent addition. 


$71. But & parcel of your land 
swept away by a river, and carried 
down to mine, continues your pro- 
perty. 

§ 72. An island that rises in the 
middle of a river is the common 
property of the proprietors on both 
banks of the river; ifit is not in 
the middle of the stream, it belongs 
to the proprietors of the nearer 

nk. 


$ 73. Again, a building erected 
on my soil, though in the name and 
for the use of the builder, belongs 
to me by the natural code; for the 
ownership of a superstructure fol- 
lows the ownership of the soil. 

§ 74. The same occurs a fortiori 
when trees are planted on my land, 
as soon as they strike root. 


§ 75. Similarly, when corn is 
sown on my land. 


§ 76. But if I bring an action to 
recover the produce or the building, 
and refuse to compensate the other 
party for his outlay on the building or 
the plantation or the cornfield, he will 
defeat my action by the plea of fraud, 
if he was an innocent possessor. 


186 


§ 77. Eadem ratione probatum 
est, quod in chartulis siue in mem- 
branis meis aliquis scripserit, licet 
aureis litteris, meum esse, quia 
litterae chartulis siue membranis 
cedunt. itaque si ego eos libros 
easue membranas petam nec inpen- 
sam scripturae soluam, per excep- 
tionem doli mali summoueri potero. 

§ 78. Sed si in tabula mea aliquis 
pinxerit ueluti imaginem, contra 
probatur; magis enim dicitur tabu- 
lam picturae cedere. cuiusdiuersita- 
tis uix idonea ratio redditur; certe 
secundum hano regulam si me 
possidente petas imaginem tuam 
esse, nec soluas pretium tabulae, 
poteris per exceptionem doli mali 
summoueri; at si tu possideas, con- 
Bequens est ut utilis mihi actio 
aduersum te dari debeat; quo casu 
nisi soluam  inpensam picturae, 
poteris me per exceptionem doli 
mali repellere, utique si bonae fidei 
possessor fueris. illud palam est, 
quod siue tu subripueris tabulam 
Blue alius, conpetit mihi furti actio. 


$ 79. In aliis quoque speciebus 
naturalis ratio requiritur. proinde 
8i ex uuis (aut oliuis aut spicis) 
meis uinum aut oleum aut frumen- 
tum feceris, quaeritur utrum meum 
sit id uinum aut oleum aut frumen- 
tum, an tuum. item si ex auro aut 
argento meo uas aliquod feceris, uel 
ex tabulis meis nauem aut armari- 
um aut subselium fabricaueris ; 
item si ex lana mea uestimentum 
feceris, uel si ex uino et melle meo 
mulsum feceris, siue ex medica- 
mentis meis emplastrum uel colly- 
rium feceris, (quaeritur utrum tuum 
sit id quod ex meo effeceris,) an 
meum. quidam materiam et sub- 
stantiam spectandam esse putant, 
id est ut cuius materia sit, illius et 
res quae facta sit uideatur esse, 
idque maxime placuit Sabino et 
Cassio. alil uero eius rem esse 


DE REBUS SINGULIS. 


(rr. $$ 65-79. 


$ 77. Similarly, the writing in- 
scribed on my paper or parchment, 
even in letters of gold, is acquired to 
me, for the property in the lettera 
follows the property in the paper or 
parchment; but if I sue for the books 
or parchment without offering com- 
pensation for the writing, my action 
will be defeated by the plea of fraud. 

$ 78. The canvas belonging to 
me, on which another man has 
painted a picture, is subject to a 
different rule, for the ownership of 
the canvas is held to follow the 
ownership of the painting: a differ- 
ence which scarcely rests on a suf- 
ficient reason. By this rule, if I 
am in possession, and you claim the 
peinting without offering the price 
of the canvas, I may defeat your 
claim by the plea of fraud. If you 
are in possession, I may claim the 
reconveyance of the canvas in & 
modified action, but unless I offer 
the price of the painting, you defeat 
me by pleading fraud, if you are an 
innocent possessor. Itiscertain, that, 
if you or another purloined the can- 
vas, I can bring an action of theft. 

$ 79. On a change of species, 
also, we, have recourse to natural 
law to determine the proprietor. 
Thus, if grapes, or olives, or sheaves, 
belonging to me, are converted by 
another into wine, or oil, or corn, a 
question arises whether the pro- 
perty in the corn, wine, or oil, is in 
me, or in the author of the con- 
version ; or if my gold or silver is 
manufactured into a vessel, or a 
ship, chest, or chair is constructed 
from my timber, or my wool is 
made into cloth, or my wine and 
honey are made into mead, or my 
drugs into a plaster or eye-salve, 
it becomes & question whether the 
property in the new product is vested 
in me or in the manufacturer. Ac- 
cording to some, the material or sub- 
stance is the criterion; that istosay, 
the owner of the material is to be 


1. § 65-79.] ADQUISITIONES DOMINII NATURALES. 


putant qui fecerit, idque maxime 
diuersae scholae auctoribus uisum 
est; sed eum quoque cuius materia 
et substantia fuerit, furti aduersus 
eum qui subripuerit, habere actio- 
nem; nec minus aduersus eundem 
comdictionem ei competere, quia 
extinctae res, licet uindicari non 
pessint, condiei tamen furibus et 
quibusdam aliis possessoribus pos- 
sunt, 


187 


deemed the owner of the product; 
and this was the doctrine of Sabinus 
and Cassius; according to others the 
ownership of the product is in the 
manufacturer, and this was the doc- 
irine of the opposite school; who 
also held that the owner of the sub- 
stance or material could maintain an 
action of theft against the purloiner, 
or an action for reconveyance, be- 
cause, though the destruction of 
property is a bar to a vindication, 
it is no bar to a reparative personal 
action (condictio furtiva) against 
the thief and (condictio sine causa) 
against those who are enriched with- 
out a cause by the loss of the ex-pro- 
prietor. (Savigny, vol. 5, p. 524.) 


QUIBUS ALIENARE LICEAT VEL NON. 


$62. Accidit aliquando, ut qui 
dominus sit, alienandae rei potesta- 
tem non habeat, et qui dominus non 
sit, alienare poesit. 

$63. Nam dotale praedium ma- 
ritusinuita muliere per legem Iuliam 
prohibetur alienare, quamuis ipsius 
st uel mancipatum ei dotis causa 
uel in iure cessum uel usucaptum. 
quod quidem ius utrum ad Italica 
tantum praedia an etiam ad pro- 
uincialia pertineat, dubitatur. 


$ 64. Ex diuerso agnatus furioti 
curator rem furio|si alienare potest 
ex lege XII tabularum; item pro- 
curator — | est; item creditor 
pignus ex | pactione, quamuis eius 
ea res non eit. sed hoc forsitan 
ideo uideatur fieri, quod uoluntate 
debitoris intellegiturpignusalienari, 
qui olim pactus est, ut liceret credi- 
tori pignus uendere, si pecunia non 
soluatur. 





$ 62. It sometimes occurs that a 
proprietor has not a power of alien- 
ation, and that a non-proprietor has 
& power of alienation. 

$63. The alienation of dower 
land by the husband, without the 
consent of the wife, is prohibited by 
the lex Julia, although the husband 
is proprietor of the land by its man- 
cipation as dower, or by surrender 
before a magistrate, or by usucapion. 
Whether this disability is confined 
to Italian soil, or extends to the 
provinces, authorities differ. 

§ 64. Contrariwise, an agnate, as 
a lunatic’s committee is empowered 
to aliene his property by the law of 
the Twelve Tables; and so is an 
agent (when invested by his prin- 
cipal with free power of administra- 
tion. Inst. 2, 1, 43). Again, a 
pledgee, in pursuance of his conven- 
tion, may aliene the pledge, though 
not proprietor ; this, however, may 
be said to rest on the assent of the 
pledgor presumed to be previously 
given in the contract of pledge which 
empowered the pledgee to sell in 
default of payment. 


188 DE REBUS SINGULIS. [1r. $$ 65-79. 


§ 65. Tradition or transfer of possession, as we have seen, was 
admitted in the civil law as a mode of transferring quiritary property 
in such non-mancipable things as were corporeal: in mancipable 
things it could only transfer bonitary property. In Justinian's 
time Tradition had superseded Surrender in court and Mancipation ; 
and transfer of possession was the universal solemnity for transfer 
of dominion. 

If we consider Surrender, Mancipation, Tradition, we shall see 
that they are only three forms of one identical title, Alienation. 
The substance or essence of the title, the intention on the one 
side to transfer property, on the other to accept it, is the same in 
all three; it is only the adventitious or accidental or evidentiary 
(3 § 92) portion of the title in which they differ. 

Although delivery of possession, like the solemnities of mancipa- 
tion and surrender, is, as compared with the will or intention of the 
parties, only an evidentiary and declaratory part of the title, yet both 
parcels, the external as well as the internal act, are indispensable in 
the transfer of dominion. Traditionibus et usucapionibus dominia 
rerum, non nudis pactis, transferuntur, Cod. 2, 3, 20. ‘ Tradition 
and usucapion, not naked convention, operate a transfer of dominion.’ 
We have already noticed exceptions to this rule in the case of 
servitus, hypotheca, societas, 8 31. Again, Nunquam nuda tra- 
ditio transfert dominium sed ita si venditio vel aliqua justa causa 
praecesserit propter quam traditio sequeretur, Dig. 41, 1, 81. * Naked 
delivery does not transfer property, but only when it is the fulfil- 
ment of a sale or some other adequate disposition) It is clear that 
mere Tradition, or transfer of physical control, without any further 
element of Title, cannot pass Dominion, for in Loan for use (commo- 
datum) tradition merely passes Detention without Possession ; in 
Pledge (pignus), it passes Possession without Property ; in Deposit, 
it sometimes passes Detention and sometimes Possession. The cases 
in which Property is passed by Tradition may be reduced to three 
classes, traditio donandi animo, traditio credendi animo, and tra- 
ditio solvendi animo. In the first, it simply confers property on 
the donee; in the second, it confers property on the transferee, 
and subjects him to an obligation ; in the third, it confers property 
on the transferee, and discharges the transferor of an obligation. 
In the two latter cases, i.e. tradition by way of loan (mutui datio) 
and tradition by way of payment (solutio), the disposition or justa 
causa accompanying tradition, contains much that is unessential to 


n.$$65—79.] ADQUISITIONES DOMINII NATURALES. 189 


the transfer of dominion, the only absolutely essential element being 
the intention of the parties to give and take dominion. In Donation, 
the justa causa traditionis consists solely of this essential element. 
The justa causa, then, which must accompany tradition, must 
involve the animus or voluntas transferendi dominii, and this, appar- 
ently, is given as the whole of the matter in a passage of Gaius 
quoted in the Digest : Hae quoque res, quae traditione nostrae fiunt, 
jure gentium nobis acquiruntur; nihil enim tam conveniens est 
naturali aequitati, quam voluntatem domini volentis rem suam 
in alium transferre ratam haberi, Dig. 41, 1, 9, $8. * Tradition is 
a natural mode of acquisition, for it is a plain dictate of reason that 
the will of an owner to transfer his ownership to another should be 
allowed to take effect." 

Delivery sometimes precedes the intention to transfer, for in- 
stance, in a conditional sale: in which case the transfer of property 
is suspended until the condition is fulfilled. 

The transferee may be an incerta persona; for instance, when 
money is scattered among a mob by a praetor or consul (missilium 
jactus), Inst. 2, 1, 46. 

Herein Dominion (jus in rem) differs from Obligation (jus in 
personam). When an Obligation is created, the payee or creditor 
or person on whom a nght is conferred, cannot be incerta persona ; 
at least jurisprudence had not recognized an obligation or personal 
right vested in incerta persona before the invention of papers pay- 
able to the holder or bearer: and here the admissibility of incerta 
persona as creditor is effected by the introduction of jus in rem into 
jus in personam. The incorporeal obligation (jus in personam), is, 
as it were, incorporated in a document, a subject of ownership (jus 
in rem), and ownership of the document is deemed to be investiture 
with the obligation. The emission of the Obligations (papers) now 
resembles the jactus missilium ; the bank, company, or government, 
that issues the obligations, treats detention of the document as 
presumptive evidence of ownership, and discharges its obligation 
by paying whoever presents the paper for payment. In these 
contracts the payee, promisee, or creditor, is only defined by 
the class term ‘bearer’ or ‘holder,’ i.e. is an incerta persona, 
individually unknown to the debtor before the moment of presen- 
tation. 

One act of assent may suffice as the antecedent to many acts of 
prehension ; for instance, in the acquisition (perceptio) of fruits by 





190 . DE REBUS SINGULIS. [u. $$ 65-79. 


a lessee (colonus) or usufructuary. Here the delivery (apprehensio) 
occurs from time to time; the will or intention of the onginal 
proprietor was manifested once for all when he created the usu- 
fruct or lease. If the fructus are res nec-mancipi, perception 
gives the lessee dominion: if they are res mancipi, perception 
gives the lessee bona fide possession, which usucapio will ripen 
into dominion. 

Mere severance (separatio) of fruits (fructus) from the soil or 
parent substance, without either constructive delivery (traditio) or 
apprehension (perceptio), gives to the bona fide possessor, according 
to Savigny, Besitz, 22 a, bona fide possession, which will be trans- 
formed into property by usucapion: according to Vangerow, 
§ 826, it gives him immediate and plenary property. Cf. Inst. 
Just. 2, 1, 85. 

If the true owner recovers the land or cattle by vindicatio, the 
judex will compel the bona fide possessor to restore the unconsumed 
fruits (fructus extantes) but not to make compensation for the con- 
sumed fruits (fructus consumpti). The mala fide possessor, on the 
contrary, acquires no property in the consumed fruits, but is com- 
pelled either by the vindicatio by which the principal thing is 
recovered or by a separate personal action (condictio) to restore 
their value; he is compelled to restore the fructus extantes either 
by the principal vindicatio or by a separate vindicatio. He can be 
sued for the value of the fruits he has neglected to gather (fructus 
neglecti) only in the principal vindicatio: their non-existence pre- 
vents his being sued for them in a. separate vindicatio; and the 
fact that he is not enriched by them prevents his being sued for 
them in a separate condictio, Savigny, System, $ 267. Cf. §§ 260- 
289 comm. 

In one case the operation, even of contract and delivery combined, 
is limited by the Twelve Tables, namely, in Sale. Here it is 
provided that tradition shall not operate a transmutation of 
property without & further condition — payment of the purchase 
money, unless the sale is intended to -be a sale on credit, Inst. 
2, 1, 41. 

Tradition in Roman law was never fictitious; it was always an 
actual delivery of a power of physical or corporeal control. In 
English law, indeed, conveyance by a deed under the Statute of 
Uses is said to transfer possession; but this is impossible: the 
physical fact of possession can no more be produced by writing on a 


0. § 65-79.] ADQUISITIONES DOMINII NATURALES. 191 


parchment, than ignition, or explosion, or chemical decomposition 
can be produced by writing on a parchment, or by any other than 
its appropriate antecedent. The possession conveyed by assurance 
under the Statute of Uses is merely a fictitious possession ; and 
instead of saying that the deed passes possession, it would be nearer 
the truth to say that, in respect of a conveyance under the Statute 
of Uses, all those parts of the law are deemed to be expunged 
which make the rights and duties of the alienee dependent on 
possession. By this statute property in land, which before could 
only be transferred by tradition (livery of seisin), became transfer- 
able by a mere translative contract (bargain and sale). 

Although we have not yet arrived at the subject of Obligation, 
we may here by way of anticipation observe that in dispositions 
creating a jus in personam Traditio plays a no less important part 
than in dispositions creating a jus in rem, as we shall see when we 
have to deal with contracts Real and innominate. In these contracts 
Traditio, superseding Stipulation and other symbolic Forms, is the 
element which differentiates a pactum nudum from a pactum ves- 
titum, i.e. which makes a convention enforcible by the publie 
tribunals. For the present it may suffice to quote the words of 
Gaius as given in the Digest: In traditionibus rerum quodcunque 
pactum sit id valere manifestissimum est, D. 2, 14, 48. ‘The 
conventions that accompany a delivery of possession are certainly 
valid.’ 

For a further examination of the nature of Possession, see the 
theory of the possessory interdicts, Book 4. 

§ 66-69. Occupation gives property in a thing which previously 
has no proprietor. Quod enim ante nullius est, id naturali ratione 
occupanti conceditur, Inst. 2, 1, 12. If a thing had already an 
owner, it 1s only after dereliction by him that it can be appropriated 
by occupation. Derelietion, or renunciation of property, requires 
both the intention to abandon it and an external action. Thus the 
casting overboard of articles in a tempest to lighten a ship is not 
dereliction, as there is no intention of abandoning the property in 
the event of salvage, Inst. 2, 1, 48. Nor does the mere intention 
of abandonment constitute dereliction of property without a throw- 
ing away or removal or some other external act; and herein dere- 
lietion of property differs from dereliction of possession, which does 
not require this second element. Differentia inter dominium et 
possessionem haec est quod dominium nihilo minus ejus manet qui 


192 DE REBUS SINGULIS. [rm §§ 65-79. 


dominus esse non vult, possessio autem recedit ut quisque constituit 
nolle possidere, Dig. 41, 2, 17. ‘There is this difference between 
dominion and possession, that dominion continues after the will to 
own has ceased, whereas possession ceases with the cessation of the 
will to possess." 

$ 68. Among wild animals (ferae naturae) a distinction is to be 
drawn. In those of them that are half tamed (mansuefactae), 
among which are mentioned deer, peacocks, pigeons, bees, property 
is not limited by detention, as in other wild animals, but by animus 
revertendi. A migrating swarm (examen) of bees, accordingly, 
would only continue to belong to the owner of the hive as long as 
it continues in his sight and is easy to recapture, as it has no 
intention of returning. In tame animals, e.g. dogs or geese, the 
rights of the owner are not extinguished by their straying without 
an intention to return. Inst. 2, 1, 12-16. 

§ 70-78. The intimate conjunction of two things, so that they 
are no longer separable and restorable to their former condition, 
produces a transmutation of property. A separable junction (com- 
mixtio), as when two flocks of sheep are intermingled, or when a 
stone is set in a ring, or when two metals are soldered together 
(plumbatura) or are fused but may be chemically separated, pro- 
duces no change of property. In one case, however, namely, when 
material has been used in building a house or cultivating a vine- 
yard, although the property of the owner continues, the Twelve 
Tables deprive him of the right to demand its separation by real 
action (vindicatio), and only allow him to bring the action de tigno 
juncto aedibus vel vineae and recover double the value. 

An inseparable union sometimes produces co-ownership in the 
whole (condominium or communio), sometimes the exclusive owner- 
ship of one of the parties (accessio). 

When two things belonging to different owners are mixed 
but neither produce a new species (confusio) nor the relation of 
principal and accessory, e.g. when two similar wines or metals are 
mixed; or when a new species is produced with the consent of both 
owners, as when mead is produced by mixing honey and wine, 
electrum by mixing gold and silver; then each owner loses his 
separate ownership of a part, and becomes joint owner of the 
whole. Inst. 2, 1, 27. 

When a new species is produced by one owner without the con- 
sent of the other, then the exclusive ownership is vested in the 


11. §§65-79.] ADQUISITIONES DOMINII NATURALES. 193 


producer, and the other can only obtain redress for the expro- 
priation or loss of his ownership. 

Farther, when the mixture establishes the relation of principal 
and accessory, that is, when one thing loses its independent ex- 
istence and becomes a part of the other (accessio), then the property 
in the whole is vested in the proprietor of the dominant part ; 
e.g. the property in the ship follows the property in the keel, 
proprietas totius navis carinae causam sequitur, Dig. 6, 1, 61. 
It will sometimes be a question which part is to be regarded as 
principal and which as accessory, and the solution does not always 
depend on their comparative value. Sometimes the relation of sub- 
stance and accident prevails, for instance, in a tapestry the property 
in the embroidery follows the property in the wool. Sometimes the 
comparative value decides ; for instance, the property in the canvas 
follows the property in the painting: and this seems more rational, 
though Gaius appears to think that a picture ought to be governed 
by the analogy of a manuscript, where the property in the writing 
follows the property in the paper. Inst. 2, 1, 34. 

$ 78. The remedy of the ex-proprietor of the accessory is an 
in factum actio (4 § 46), Dig. 6, 1, 28, 5. Ulpian, Dig. 6, 1, 5,3, 
speaks of a real action (utilis in rem. actio), which, as a real action 
implies that the plaintiff is proprietor, seems to mean a Fictitious 
action, 4 § 84, 1. e. one whose formula feigns that the property was 
never devested by Accession. This may be what Gaius means by 
utilis actio. 

§ 79. Specification or labour is a title which cannot without 
violence be brought under either Occupatio or Accessio. Here 
one person contributes only his labour, whereby he transforms 
the material or materials belonging to another into a new product 
(nova species). "The Sabinians held that the product belonged (by 
Accessio?) to the owner of the matter, the Proculeians (by Oc- 
cupatio ?) to the producer of the form. Justinian adopts an inter- 
mediste opinion, which Gaius mentions, Dig. 41, 1, 7, 7, cf. Inst. 
2, 1, 25, that the product belongs to the producer, provided that it 
cannot be reduced to the original substance, in which case it be- 
longs to the owner of that substance; e.g. a vessel belongs to the 
owner of the gold or silver out of which it was made: and provided 
further that the change is a genuine fabrication or manufacture; 
for instance, the mere thrashing out of corn is not sufficient to 
change the ownership, and therefore the corn belongs to the owner 

0 





194 DE REBUS SINGULIS. [1r. $$ 65-79. 


of the sheaves: and the mere dying of wool operates no transfer 
of ownership to the dyer, D. 41, 1, 26, 3. 

In the subjoined synopsis of the various titles to dominion which 
have been considered the proper position of Specification is open to 
controversy. 


Acquisition is either Derivative (implying Succession) or 
Original. | 
Derivative acquisition depends on (1) the will of the previous 

owner (alienatio, testatio) (2) the disposition of a judex 
(adjudication, execution), or (3) the disposition of the legis- 
lator (intestate succession, forfeiture). 


Original acquisition is either independent of Possession or 
depends on Possession. 


Original aequisition independent of Possession is either the 
effect of Separation or of Conjunction. 


Separation is a title to property in the case of Separatio © 
fructuum, which confers property in the fruits on the 
bona fide possessor, emphyteuta, and proprietor. 


Conjunction is either the conjunction of equal with equal 
or the conjunction of accessory with principal. 


The conjunction of equal with equal is seen in Con- 
fusio, which produces communio or co-proprietor- 
ship, and Specificatio, which produces either com- 
munio or exclusive ownership. 


The conjunction of accessory with principal is either 
of immovable with immovable, instanced in Al- 
luvio : 

or of movable with immovable, instanced in Satio, 
Plantatio, Inaedificatio : 

or of movable with movable, instanced in Scriptura, 
Pictura. 

Original acquisition dependent on Possession is either fur- 
ther dependent on Time or is not dependent on Time. 


Original acquisition dependent on Possession and further 
dependent on Time is seen in Usucapio and Prae- 
scriptio. 


n. $$ 80-85. | PUPILLORUM ALIENATIO. 195 


Original acquisition dependent on Possession but inde- 
pendent of Time is seen in Occupatio, including Captio 
ferarum, Captio hostilis, Inventio derelicti, Inventio 
thesauri. 


§§ 62-64. It is conjectured that by some accidental displacement 
these three paragraphs have been transposed, and that in their 
proper order they should follow § 61. There seems no good reason 
why they should be interposed between the titles of civil law and 
the titles of natural law. 

The lex Julia, relating only to Italian soil, permitted the 
husband to aliene the dotal land, with the consent of the wife, but 
prohibited its hypothecation, even with her consent. Justinian 
extended the prohibition to provineial soil, and to alienation with 
the wife's consent, Inst. 2, 8, pr. 

Javolenus held that the power of sale of a pledge was acci- 
dentale negotii, and required a special agreement, D. 47, 2, 73. 
Ulpian says that power of sale is essentiale negotii, and that a 
contrary agreement is inoperative, except that it imposes a necessity 
of three denunciations, D. 18, 7, 4. 


[&. V. DE PVPILLIS AN ALIQVID 
A SE ALIENARE POSSVNT. | 


$80. Nunc admonendi sumus 
neque feminam neque pupillum sine 
tutoris auctoritate rem mancipti 
alienare posse; nec mancipü uero 
feminam quidem posse, pupillum 
non posse. 


$81. Ideoque st quando mulier 
mutuam pecuniam alicui sine tuto- 
ris anctoritate dederit, quia facit 
eam accipientis, cum scilicet pecunia 
res nec mancipii sit, contrahit obli- 
gationem. 

$82. At si pupillus idem fecerit, 
!quia non fücit accipientis 8 ; 
nullam | contrahit obligationem ; 
unde pupillus uindicare quidem 
nummos suos potest, sicubi extent, 
id est eos petere suos ex iure Quiri- 
tium esse; mulier uero minime hoc 
modo repetere potest, sed ita : dari 
ubi oportere. unde de pupillo 
quidem quaeritur, an, si nummi, 
quos mutuos dedit, ab eo qui acce- 





WHETHER WARDS CAN 
ALIENE. 


§ 80. We must next observe, 
that neither a woman nor a ward 
can aliene a mancipable thing with- 
out their guardian’s authority: a 
ward cannot aliene a non-mancip- 
able thing without the guardian’s 
authority, & woman can. 

$81. Thus & woman lending 
money without the guardian's au- 
thority passes the property therein 
to the borrower, money being a 
non-mancipable thing, and imposes 
& contractual obligation. 

$ 82. But a ward lending money 
without his guardian’s authority 
does not pass the property, and 
impose a contractual obligation, and 
therefore he can recover buck the 
money, if it exists, by real action, 
that is, by claiming it as quiritary 
proprietor; whereas a woman can 
only bring an action of debt. 
Whether & ward can maintain an 
action in case the money has been 


o 2 








196 


pit, consumpti | sunt, aliqua actione 
eos persequi possit, quoniam obliga- 
tionem etiam sine tutoris auctori- 
tate adquirere sib: potest. 


$ 83. At ex contrario | omnes res 
tam mancipit quam nec mancipii 
mulieribus et pupillis sine tutoris 
auctoritate solui possunt, quoniam 
meliorem condicionem suam facere 
eis etiam sine tutoris auctoritate 
concessum est. 

$ 84. Itaque si debitor pecuniam 
pupillo soluat, facit quidem pecu- 
niam pupilli, sed ipse non liberatur, 
quia nullam obligationem pupillus 
sine tutoris auctoritate dissoluere 
potest, quia nullius rei alienatio ei 
sine tutoris auctoritate concessa 
est; sed tamen si ex ea pecunia 
locupletior factus sit et adhuc petat, 
per exceptionem doli mali summo- 
ueri potest. 

$ 85. Mulieri uero etiam sine 
tutoris auctoritate recte solui po- 
test; nam qui soluit, liberatur obli- 
gatione, quia res nec mancip?ii, ut 
proxime diximus, a se dimittere 
mulieres etiam sine tutoris auctori- 
tate possunt. quamquam hoc ita 
est si accipiat pecuniam; at si non 
accipiat, sed habere se dicat et per 
acceptilationem uelit debitorem sine 
tutoris auctoritate liberare, non 
potest. 


§ 80, cf. 1, §§ 189-193. 


DE REBUS SINGULIS. 


[1r. $$ 80-85. 


consumed by the borrower, is a 
subject of controversy, because a 
ward can acquire a claim against a 
person without the sanction of his 
guardian. 

§ 83. On the contrary, both man- 
cipable and non-mancipable things 
can be conveyed to women and 
wards without their guardian’s au- 
thority, because they do not require 
his authority to better their posi- 
tion. 

§ 84. Accordingly, a debtor who 
pays money to a ward passes the 
property therein to the ward, but 
is not discharged of his obligation, 
because a ward cannot release from 
any liability without his guardian’s 
authority, as without such authority 
he cannot aliene any right : if, how- 
ever, he profits by the money, and 
yet demands further payment, he 
may be barred by plea of fraud. 

§ 85. A woman may be lawfully 
paid without her guardian’s author- 
ity, and the payer is discharged of 
liability, because, as we lately men- 
tioned, a woman does not need her 
guardian’s authority for the alien- 
ation of a non-mancipable right, 
provided always that she receives 
actual payment: for if she is not 
actually paid, she cannot feign re- 
ceipt and release her debtor by fic- 
titious acknowledgment (3 § 169) 
without her guardian’s authority. 


§ 82. For mutuum, see 8 § 90. If the money delivered by a ward 
could be traced it was recoverable by real action (vindicatio): if it 
had been consumed in bona fides a personal action, condictio certi, 
would lie to recover an equivalent sum: if it had been consumed in 
mala fides a personal action, ad exhibendum, would lie to recover 
an equivalent sum and damages, Inst. 2, 8, 2, cf. 1, 142, and 


comm. 


$ 85. The pupilage of women after attaining the age of twelve, 
ie. the age of puberty, had become obsolete before the time of 
Justinian, and with it their incapacities of alienation. 


n.$$86-96.] INSTRUMENTS OF ACQUISITION. 


197 


PER QUAS PERSONAS NOBIS ADQUIRATUR. 


§ 86. Adquiritur autem nobis non 
solum per nosmet ipsos, sed etiam 
per eos quos in potestate manu 
mancipioue habemus ; item per eos 
seruos in quibus usumfructum habe- 
mus; item per homines liberos et 
seruos alienos quos bona fide posei- 
demus. de quibus singulis diligen- 
ter dispiciamus. 

$ 87. Igitur (quod) liberi nostri 
quos in potestate habemus, item 
quod serui nostri mancipio accipiunt 
nel ex traditione nanciscuntur, siue 
quid stipulentur, uel ex aliqualibet 
causa adquirunt, id nobis adquiri- 
tur; ipse enim qui in potestate 
nostra est, nihil suum habere potest. 
et ideo si heres institutus sit, nisi 
nostro iussu hereditatem adire non 
potest; et si iubentibus nobis 
adierit, hereditas nobis adquiritur 
proinde afque -si nos ipsi heredes 
instituti essemus ; et conuenienter 
scilicet legatum per eos nobis ad- 
quiritur. 


$ 88. Dum tamen sciamus, si 
alterius in bonis sit seruus, alterius 
ex iure Quiritium, ex omnibus 
causis ei soli per eum adquir?, cuius 
in bonis est. 

$ 89. Non solum autem proprie- 
tas per eos quos in potestate habe- 
mus adquiritur nobis, sed etiam 
possessio ; cuius enim rei possessio- 
nem adepti fuerint, id nos possidere 
uidemur ; unde etiam per eos usu- 
capio procedit. 

$90. Per eas uero personas quas 
in manu mancipioue habemus, pro- 
prietas quidem adquiritur nobis ex 
omnibus causis sicut per eos qui in 
potestate nostra sunt; an autem 
possessio adquiratur, quaeri solet, 
quis ipsas non possidemus. 

$91. De his autem seruis in qui- 
bus tantum usumfructum habemus, 


$ 86. We may acquire property 
not only by our own acts but also 
by the acts of persons in our power, 
hand, or mancipation; further, by 
slaves in whom we have a usufruct ; 
further, by freemen or another's 
slave of whom we are innocent 
possessors : and let us now examine 
these cases in detail. 

$87. The rights of property 
which children under power or 
slaves acquire by mancipation or 
tradition, the rights to a service 
they acquire by stipulation, and all 
rights they acquire by any other 
title, are acquired for their supe- 
rior; for an inferior is incapable 
of holding property, and if insti- 
tuted heir he must have the com- 
mand of his superior to be capable 
of accepting the inheritance, and if 
he has the command of the superior 
and accepts the inheritance, it is 
acquired for the superior just as if 
he himself had been instituted heir: 
and the same occurs in the case of 
&legacy. 

$ 88. When one man is bonitary 
proprietor of a slave and another 
quiritary proprietor, whatever the 
mode of acquisition, it enures exclu- 
sively to the bonitary proprietor. 

$89. Not only property is ac- 
quired for the superior but also 
possession, for the detention of the 
inferior is deemed to be the posses- 
sion of the superior, and thus the 
former is to the latter an instru- 
ment of usucapion. 

$ 90. Persons in the hand or 
mancipation of a superior acquire 
dominion for him by all modes of 
acquisition just as persons in his 
power; whether they acquire pos- 
session for him, is a controversy, not 
being themselves in his possession. 

§ 91. Respecting slaves in whom 
& person has only a usufruct, the 


198 


ita placuit, ut quidquid ex re nostra 
uel ex operis suis adquirant, id 
nobis adquiratur ; quod uero extra 
eas causas, id ad dominum proprie- 
tatis pertineat. itaque si iste seruus 
heres institutus sit legatumue quod 
ei datum fuerit, non mihi sed do- 
nino proprietatis adquiritur. 


$ 92. Idem placet de eo qui & 
nobis bona fide possidetur, siue 
liber sit siue alienus seruus. quod 
enim placuit de usufructuario, idem 
probatur etiam de bonae fidel pos- 
sessore. itaque quod extra duas 
istas causas adquiritur, id uel ad 
ipsum pertinet, si liber est, uel ad 
dominum, si seruus est. 

$ 93. Sed bonae fidei possessor 
cum usuceperit seruum, quia eo 
modo dominus fit, ex omni causa 
per eum sibi adquirere potest. usu- 
fructuarius uero usucapere non 
potest: primum quia non possidet, 
sed habet ius utendi [et] fruendi; 
deinde quia scit alienum seruum 
esse. 


$ 94. De illo quaeritur, an per 
eum seruus in quo usumfructum 
habemus, possidere aliquam rem et 
usucapere possimus, quia ipsum non 
possidemus. per eum uero quem 
bona fide possidemus, sine dubio et 
possidere et usucapere possumus. 
loquimur autem in utriusque per- 
sona secundum definitionem quam 
proxime exposuimus, id est si quid 
ex re nostra uel ex operis suis ad- 
quirant [id nobis adquiritur ]. 


$ 95. Ex his apparet per liberos 
homines quos neque iuri nostro 
Bubiectos habemus neque bona 
fide possidemus, item per alienos 
seruos in quibus neque usumfrac- 
tum habemus neque iustam posses- 


DE REBUS SINGULIS. 


[ui. $$ 86-96. 


rule is, that what they acquire by 
administering the property of the 
usufructuary or by their own labour 
is acquired for the usufructuary ; 
but what they acquire by any other 
means belongs to their proprietor 
(the reversioner). Accordingly, if 
such a slave is instituted heir or 
made legatee, the succession or 
legacy is acquired, not to the usu- 
fructuary, but to the proprietor. 

§ 92. The innocent possessor of 
a freeman or a slave belonging to 
another has the same rights as a 
usufructuary ; what they acquire by 
any other title than the two we 
mentioned, belonging in the one 
case to the freeman in the other to 
the true proprietor. 


§ 93. After a bona fide possessor 
has acquired the ownership of a 
slave by usucapion, all acquisitions 
by the slave enure to his benefit. 
A usufructuary cannot acquire a 
slave by usucapion, for, in the first 
place, he has no true possession, 
but only a quasi possession of a 
servitude; in the second place, he 
is aware of the existence of another 
proprietor. 

§ 94. It is a question whether a 
slave can be an instrument of pos- 
session and usucapion to a usufruc- 
tuary, not being himself in his pos- 
session. A slave, undoubtedly, can 
be the instrument of possession and 
usucapion to a bona fide possessor. 
Both cases are limited by the dis- 
tinction recently drawn, that is, the 
proposition is confined to the things 
acquired by the slave in the admi- 
nistration of & party's property or 
by his own labour. 

$ 95. It appears that freemen 
not subject to my power nor in my 
innocent possession, and my neigh- 
bour's slave of whom I am neither 
usufructuary nor just possessor, 
cannot under any circumstances be 


i. §§ 86-96.] INSTRUMENTS OF ACQUISITION. 


sionem, nulla ex causa nobis ad- 
quin posse. et hoc est quod uulgo 
dicitur per extraneam personam 
nobis adquiri non posse. tantum 
de possessione quaeritur, an (per 
liberam) personam nobis adquiratur. 


$96. Insumma sciendum est his 
qui in potestate manu mancipioue 
sunt, nihil in iure cedi posse; cum 
enm istarum personarum nihil 


199 


instruments of my acquisition, and 
this is the import of the dictum 
that a stranger cannot be an in- 
strument in the acquisition of any- 
thing ; only in respect of possession 
there is a controversy as to whether 
an agent can be instrumental in its 
acquisition. 

§ 96. Finally, it is to be observed 
that persons under power, in hand, 
or in bondage, cannot acquire by 
surrender before a magistrate, for, 


being incapable of ownership, they 
are incompetent to bring a claim of 
ownership before a tribunal. 


suum esse possit, conueniens est 
scilicet, ut nihil suum esse in iure 
uindicare possint. 


$87. Manus and mancipium had ceased to exist before the time 
of Justinian, and patria potestas was much reduced. Originally, 
the filiusfamilias was incapable of property: in the peculium, the 
goods he was allowed to administer, he had no property nor even 
possession, 4 § 148, but merely detention. The military profession 
were the first to emerge from this position of inferiority, and in 
respect of peculium castrense the filiusfamilias was deemed to have 
the status of paterfamilias. By the introduction of peculium quasi 
castrense this privilege was extended to certain civil functionaries 
and liberal professions: and by inventing peculium adventitium 
Constantine still further emancipated the filiusfamilias. Peculium 
adventitium, as opposed to peculium profectitium, was what came 
to the son from any other source than the estate and permission of 
the father : in respect of peculium profectitium the old law con- 
tinued in force; the paterfamilias remained absolute proprietor : but 
in respect of peculium adventitium the right of the father was 
reduced to a life estate or usufruct: in respect of the fee or re- 
version in remainder after this life estate the filiusfamilias was 
proprietor, Inst. 2, 9, 1, cf. 1, 55, comm. The reduction of patria 
potestas, and the abolition of the dependent law of Agnation, may 
be almost, regarded (so fundamental were these institutions in jus 
civile) as the abrogation of the civil law, and the substitution in 
its stead of what the Romans called jus gentium or the law of 
nature. 

$88. The power of aequinng by the acts of a slave and the 
power of manumission are elements of potestas, which accompanies 
Bonitary, not Quiritary, dominion, 1, § 54, 8 § 166. 


200 DE REBUS SINGULIS. [rr. $$ 86-96. 


§ 94. Dig. 41, 2, 1, 8. Inst. 2, 9, 4. 

$95. All Dispositions or modes of conferring either rights 
against one (jus in personam), or rights against the world (jus in 
rem), are divisible, as we have before mentioned, into two parcels ; 
an essential portion, some mental or internal act, the Intention of 
the parties; and an evidentiary portion, the Execution of this in- 
tention, its incorporation in some overt act. Can these elements 
of title be contributed by different persons? Can the Intention 
of disposing, that is, of acquiring or aliening, reside in one, and 
can its Execution, its external manifestation, be delegated to a 
representative ? 

Originally, that is, under the ancient civil law, representation 
was only admitted when the representative was in an inferior status 
to the principal, was his slave, or subject to his potestas, manus, or 
mancipium. This limitation was found to be inconvenient, when, 
in the progress of Roman conquest, Roman citizens became pro- 
prietors in remote parts of the world ; and Possession was allowed 
to be acquirable by the instrumentality of libera persona, that 1s, of 
a person who stood in no relation of inferiority to the acquirer. In 
a civil solemnity, like mancipation, a man could not be represented 
by an independent agent; but when, subsequently, the transfer of 
possession became the universal mode of transferring dominion, it 
followed that Property, as well as Possession, could be acquired by 
the agency of libera persona. Inst. Just. 2, 8, 5. 

The acquisition of Obligations or personal rights by brokerage of 
an independent agent was less perfectly developed. Originally, the 
process employed was a duplication of the relation of agency (man- 
datum). A as principal (dominus) appointed B his agent (pro- 
curator). B then contracted with a third party in his own name, 
and, in order to transfer the benefit of his contract to A, he ceded to 
him his right of action, that is to say, B, as principal, in his turn 
made A his agent (procurator in rem suam), whereby A was able to 
sue in the name of B, and obtain judgment in the name of A. 
Finally, the praetor allowed the principal to sue immediately, with- 
out this cession of actions, by bringing a utilis actio, i. e. a fictitious 
action, or aetion which feigned that the cession had taken place, or 
rather, that the principal had been the immediate contractor, not 
represented by an agent. But this fiction was only required in 
respect of contracts governed by principles of civil law, i.e. the 
Formal contracts, of which at last the only instance was Stipulatio. 


1.$86-96.] INSTRUMENTS OF ACQUISITION. 201 


In Formless contracts, or contracts governed by jus gentium, the 
agent was a mere conduit pipe; the principal acquired an immediate 
nght or obligation, without Cession and without Fiction Dig. 41, 1, 
53. ‘Rights obtained by civil titles can only be acquired by the 
mediation of persons in our power; for instance, rights by stipu- 
lation: rights obtained by natural titles, such as the right of 
possession, are acquirable through any agent that we choose to 
employ.” See 3 § 168, to which place this topic more properly 
belongs, and for a different interpretation of this passage see Wind- 
scheid, Pandekten, ii. § 78. 

§96. We might have expected that, as inferiors can acquire 
for their superiors by Mancipatio, 2 § 87, so they could also acquire 
by In jure cessio, especially as the same form of words: Hunc ego 
hominem ex jure Quiritium meum esse aio: was used in Manci- 
patio, 1 § 119, and in Vindicatio, 4 $ 16. It seems, however, that 
in Mancipatio the formula could be changed to: Hane rem ex 
jure Quiritium Lucii Titii domini mei esse aio, 8 § 167; and that 
3» similar modification was not admissible in the legis actio. It 
follows that an inferior (filius, mancipium, or servus) could acquire 
for his superior rural servitudes, but not urban or personal servi- 
tudes, 2 § 29, 30; not, that is to say, as res singulae: for as parts 
of a rerum universitas these and all other rights could be acquired 
for & superior by an inferior by making aditio of an hereditas 
With the sanction of the superior, 2 $ 188; and even as res singulae 
these rights could be acquired for a superior by an inferior by title 
of legatum ; that is, if they are conferred by a testator on the in- 
fenor as legatarius, Vat. frag. 51. 

As a Rerum universitas includes Obligations (res incorporalis), 
active and passive, as well as Dominion (res corporalis), the con- 
sideration of Obligation should, theoretically speaking, precede the 
consideration of Rerum universitas; in an elementary exposition 
like the present, however, no practical inconvenience is occasioned 
by postponing the consideration of Obligations, the remaining 
branch of Res singulae, while we gain by exhausting the subject 
of jus in rem before proceeding to the examination of jus in 
personam. 

We may remember that Rerum universitas, as well as Servitudes 
and Obligations, was included by the Romans under the term Res 
incorporalis, 2 $ 14. "The whole division of righte, however, into 
Res corporalis and Res incorporalis is unsatisfactory ; for, as we 


202 


DE RERUM UNIVERSITATIBUS. 


[nr. $$ 97-108. 


have already noticed, it was only from confusion of thought that 
Dominion was held to be Res corporalis; and all Rights are, really, 


Res incorporales. 


QUIBUS MODIS PER UNIVERSITATEM RES ADQUIRANTUR. 


$ 97. Hactenus tantisper admo- 
nuisse sufficit quemadmodum sin- 
gulae res nobis adquirantur. nam 
legatorum ius, quo et ipso singulas 
res adquirimus, opportunius alo 
loco referemus.  uideamus itaque 
nunc quibus modis per uniuersita- 
tem res nobis adquirantur. 


$ 98. Si cui heredes facti sumus, 
siue cuius bonorum possessionem 


petierimus, siue cuius bona emeri- : 


mus, siue quem adoptauerimus, siue 
quam in manum ut uxorem recep- 
erimus, eius res ad nos transeunt. 


$ 99. Ac prius de hereditatibus 
dispiciamus, quarum duplex condicio 
est: nam uel ex testamento uel ab 
intestato ad nos pertinent. 

$100. Et prius est ut de his dis- 
piciamus quae nobis ex testamento 
obueniunt. 


$ 97. So much at present re- 
specting the modes of acquiring 
SINGLE rights; for bequest, an- 
other title whereby single rights are 
acquired, will find a more suitable 
place in a later portion of our 
treatise. We proceed to the titles 
whereby an AGGREGATE of rights is 
acquired. 

§ 98. If we become the successors, 
civil or praetorian, of a person de- 
ceased, or purchase the estate of an 
insolvent, or adopt a person sul 
juris, or receive a wife into our 
hand, the whole estate of those 
persons is transferred to us in an 
aggregate mass. 

§ 99. Let us begin with inherit- 
ances, whose mode of devolution is 
twofold, according as a person dies 
testate or intestate. 

§ 100. And we first treat of ac- 
quisition by will 


DE TESTAMENTIS ORDINANDIS. 


$ 101. Testamentorum autem 
genera initio duo fuerunt: nam aut 
calatis comitiis testamentum facie- 
bant, quae comitia bis in anno tes- 
tamentis faciendis destinata erant, 
aut in procinctu, id est cum belli 
causa arma sumebant; procinctus 
est, enim expeditus et armatus exer- 
citus. alterum itaque in pace et in 
otio faciebant, alterum in proelium 
exituri. 

$ 102. Accessit deinde tertium 


$101. Wills were originally of 
two kinds, being made either at 
the comitia calata, which were held 
twice a year for making wills, or in 
martial array, that is to say, in the 
field before the enemy, martial array 
denoting an army clad and armed 
for battle. One kind, then, was 
used in time of peace, the other in 
time of war. 


§ 102. More recently, a third 


1.5$97-108.] DE TESTAMENTIS ORDINANDIS. 


genus testamenti, quod per aes et 
libram agitur. qui neque calatis 
comitiis neque in procinctu testa- 
mentum fecerat, is si subita morte 
urguebatur, amico familiam suam, 
id est patrimonium suum, mancipio 
dabat, eumque rogabat, quid cuique 
post mortem suam dar? uellet. quod 
testamentum dicitur per aes et 
libram, scilicet quia per mancipati- 
onem peragitur. 


$103, Sed illa quidem duo ge- 
nera testamentorum in desuetudi- 
nemabierunt; hoc uero solum quod 
per aes et libram fit, in usu re- 
tentum est. sane nunc aliter ordi- 
natur quam olim solebat. namque 
olim familiae emptor, id est qui a 
testatore familiam accipiebat man- 
cipio heredis locum optinebat, et 
ob id ei mandabat testator, quid 
cuique post mortem suam dari 
uellet ; nunc uero alius heres tes- 
tamento instituitur, a quo etiam 
legata relinquuntur, alius dicis 
gratia propter ueteris iuris imita- 
tionem familiae emptor adhibetur. 


$104. Eaque res ita agitur: qui 
facit (testamentum), adhibitis, sicut 
in ceteris mancipationibus, V tes- 
tibus ciuibus Romanis puberibus 
et libripende, postquam tabulas 
testamenti scripserit, mancipat ali- 
cui dicis gratia familiam suam ; in 
qua re his uerbis familiae emptor 
utitur FAMILIA PECVNIAQVE TVA 
ENDO MANDATELAM CVSTODELAM- 
QVE MEAM, QVO TV IVRE TESTA- 
MENTVM FACERE POSSIS SECVNDVM 
LEGEM PYBLICAM, HOC AEBE, et ut 
quidam adiciunt AENAKQVE LIBRA, 
ESTO MIHI EMPTA; deinde aere 
percutit libram, idque aes dat tes- 
tatori uelut pretiiloco; deinde tes- 
tator tabulas testamenti tenens ita 
dicit HAEC ITA VT IN HIS TABVLIS 


203 


kind was introduced, effected by 
bronze and balance. A man who 
had not made his will, either in the 
comitia calata or in martial array, 
being in apprehension of approach- 
ing death, used to convey his estate 
by mancipation to a friend, whom 
he requested to distribute it to cer- 
tain persons in & certain manner 
after his death. This mode of tes- 
tamentary disposition is called the 
will by bronze and balance, because 
it involves the process of mancipa- 
tion. 

$ 103. The first two modes have 
fallen into desuetude, and that by 
bronze and balance, which alone sur- 
vives, has undergone a transforma- 
tion. In former times the vendee 
of the estate, the alienee by manci- 
pation from the testator, was the 
successor, and received the tes- 
tators instructions respecting the 
disposition of his property after his 
death. At the present day, the 
person who is instituted successor, 
and who is charged with the execu- 
tion of the bequests, is different 
from the person who, for form's 
sake, and in imitation of the ancient 
process, represents the purchaser. 

$104. The proceedings are as 
follows: The testator having sum- 
moned, as is done in other manci- 
pations, five witnesses, all Roman 
citizens of the age of puberty, and 
a holder of the balance, and having 
already reduced his will to writing, 
makes a fictitious mancipation of 
his estate to a certain vendee, 
who thereupon utters these words: 
‘Thy family and thy money into 
my charge, ward, and custody I 
receive, and, in order to validate 
thy wil conformably to Roman 
law, with this ingot, and’ — as 
some continue —' with this scale of 
bronze, unto me be it purchased.’ 
Then with the ingot he strikes the 
scale, and delivers the ingot to the 


204 


CERISQVE SCRIPTA SVNT, ITA DO 
ITA LEGO ITA TESTOR ITAQVE VOS 
QVIBITES TESTIMONIVM MIHI PER- 
HIBETOTE; et hoc dicitur nuncu- 
patio: nuncupare est enim palam 
nominare, et sane quae testator 
specialiter in tabulis testamenti 
scripserit, ea uidetur generali ser- 
mone nominare atque confirmare. 


$ 105. In testibus autem non 
debet is esse qui in potestate est 
aut familiae emptoris aut ipsius 
testatoris, quia propter ueteris iuris 
imitationem totum hoc negotium 
quod agitur testamenti ordinandi 
gratia, creditur inter familiae emp- 
torem agi et testatorem; quippe 
olim, ut proxime diximus, 18 qui 
familiam testatoris mancipio acci- 
piebat, heredis loco erat; itaque 
reprobatum est in ea re domesticum 
testimonium. 

§ 106. Unde et si is qui in potes- 
tate patris est, familiae emptor ad- 
hibitus sit, pater eius testis esse 
non potest; ac ne is quidem qui zn 
eadem potestate est, uelut frater 
eius. sed si filius familias ex cas- 
trensi peculio post missionem faciat 
testamentum, nec pater eius recte 
testis adhibetur nec is qui in 
potestate patris est. 

$ 107. De libripende eadem quae 
et de testibus dicta esse intellege- 
mus; nam et is testium numero 
est. 

§ 108. Is uero qui in potestate 
heredis aut legatarii est, cuiusue 
heres ipse aut legatarius in potes- 
tate est, quique in eiusdem potestate 
est, adeo testis et libripens adhi- 
beri potest, ut ipse quoque heres 
aut legatarius iure adhibeantur. 
sed tamen quod ad heredem perti- 
net quique in eius potestate est 


DE RERUM UNIVERSITATIBUS. 


[n. $$ 97-108. 


testator, as by way of purchase- 
money.  Thereupon the testator, 
holding the tablets of his will, says 
as follows: ‘This estate, as in 
these tablets and in this wax is 
written, I so grant, so devise, so 
dispose; and do you, Quirites, so 
give me your attestation. These 
words are called the nuncupation, 
for nuncupation signifies public 
declaration, and by these general 
words the specific written disposi- 
tions of the testator are published 
and confirmed. 

$105. For the part of witness, 
it is a disqualification to be in the 
power of the fictitious vendee or of 
the testator, because, the old pro- 
ceeding furnishing the model, the 
whole testamentary process is Sup- 
posed to be a transaction between 
the vendee and the testator; and 
in old times, as was just observed, 
the vendee was the testamentary 
successor; wherefore no person in 
the power of the vendee was a com- 
petent witness. 

$106. Hence too, if the vendee 
is a filiusfamilias, neither his father 
nor any one in his father’s power, 
his brother, for instance, is com- 
petent to attest; and if a filius- 
familias, after his discharge from 
service, make a will of his military 
peculium, neither his father nor any 
one in his father’s power is qualified 
to be a witness. 

§ 107. The same rules apply to 
the balance-holder, for the balance- 
holder is a witness. 


§ 108. Not only is a person who 
is in the power of the heir or 
legatee, or a person who has power 
over the heir or legatee, or a person 
in the same power as the heir or 
legatee, capable of being witness or 
balance-holder, but the heir or lega- 
tee himself can act in this character. 
However, it is advisable that the 


1.$$97-108.] DE TESTAMENTIS ORDINANDIS. 205 


cuiusue is in potestate erit, minime heir, and those in his power, and 

hoc iure uti debemus. the person in whose power he is, 
should not exercise their qualifica- 
tion. 


$101. A will is thus defined by Ulpian: Testamentum est 
mentis nostrae justa contestatio, in id sollemniter facta, ut post 
mortem nostram valeat, 20, 1. ‘A will is a duly attested de- 
claration of intention, solemnly executed in order to operate after 
death.’ So important is the institution of a heres to the validity 
of a will in Roman law, that à Roman testament might be simply 
defined the institution of a heres. 

Testamentary disposition was an interference with the more 
ancient law of succession by descent or intestate devolution, and 
the diversion of property from the legal course of transmission 
seemed at first so great an innovation as to require legislative 
sanction. Accordingly, the will executed in the Comitia Calata, or 
convocation of the curiae, was really a private law; and even the 
will in procinctu, when we remember the original identity at Rome 
of the civil and military organization, may be regarded as a legis- 
lative act of the people in military convocation. 

$102. The mancipatory will, or will by bronze and scale, probably 
began to supersede the older form as soon as the Twelve Tables had 
given legal force to the nuncupative part of mancipation (Cum 
nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, 
Festus. * In contract or conveyance by bronze and balance, the oral 
declaration shall have legal force,’) and had expressly recognized 
in every paterfamilias a power of testamentary disposition (Uti 
legassit super [familia], pecunia, tutelave suae rei, ita jus esto, 
Ulpian, 11, 14. ‘The directions of a testator respecting his family, 
property, and the guardianship of his children, shall be carried into 
effect)" 

$108. The introduction of writing marks an era in mancipatory 
wills. Originally, the testator gave oral instructions to the familiae 
emptor in the presence of the witnesses respecting the distribution 
of his estate. These oral instructions, forming the lex mancipii, or 
conditions of the conveyance, were called the nuncupatio. After- 
wards, for the sake of secrecy, the testator committed his inten- 
tions to writing, and the nuncupation became a mere form of publi- 
eation, or general ratification of the directions contained in the 
tablets which the testator held in his hand, It was probably in 


206 DE RERUM UNIVERSITATIBUS.  [m. §§ 97-108. 


part, as Theophilus says, with the same view of concealing the 
testator’s intentions, that the familiae emptor was separated from 
the heres, but in part also to enable the testator to institute as heres 
8 person who from infancy or any other disability was incapable of 
co-operating in a mancipation. 

§ 105. It is an intelligible rule, that a person interested in the 
validity of a will should be incompetent as a witness; and, when 
the familiae emptor was the heir, it was reasonable to disqualify for 
attestation any one united in interest to the familiae emptor. But 
when the mancipation was purely fictitious (imaginaria mancipatio, 
Ulpian, 20, 3; imaginaria venditio, Inst. 2, 10, 1), and the imagi- 
nary vendee distinct from the heir, the continuance of this disqualifi- 
cation shows the tendency of the Romans to venerate rules after the 
principles on which they were founded had ceased to operate. In 
the meantime the heir, who was really interested, was competent to 
be a witness. Cicero, for instance, mentions that he and Clodius 
were both witnesses to a will in which they were appointed heirs, 
Pro Milone, 18, 48. Thus the dispositions of the legislator were 
deranged and stultified: totum jus conturbatum erat, Inst. 2, 
10, 10: the transference of interest from the familiae emptor to 
the heres not being accompanied by a corresponding transference 
of testimonial disqualifieation from the relatives of the familiae 
emptor to the relatives of the heres. Justinian converted the 
advice of Gaius into a rule of law, and disabled the heir 
and persons united to him by the bond of potestas from giving 
attestation, Inst. 2, 10, 10.  Legatees retained their competency 
to attest. 

$ 106. This statement of Gaius respecting a will of castrense 
peculium, is inadvertently transferred to Justinian's Institutes, 2, 
10, 9, but is inconsistent with a dictum of Ulpian’s in the Digest : 
Per contrarium quaeri potest, an pater ejus qui de castrensi peculio 
potest testari, adhiberi ab eo ad testamentum testis possit? Et 
Marcellus libro decimo Digestorum scribit posse: et frater ergo 
poterit, D. 28, 1, 20, 2. We have here, then, a case of Antinomy 
(contradictory laws) in Justinian’s legislation. Vangerow, § 44-4, 
solves the antinomy by supposing that Ulpian speaks of a will 
made during service; the Institutes, like Gaius, of a will made post 
missionem. 

By English law, 1 Vic. c. 26, any devise or legacy to an attest- 
ing witness is void, and the evidence of the witness admissible, 


1.$$97-108.] DE TESTAMENTIS ORDINANDIS. 207 


and no person is incompetent to attest on account of being ap- 
pointed executor. 

In another form of will deriving its validity from the authority 
of the praetor, the form of mancipation was dropped, and the only 
authentication required was the apposition of the seals of seven 
attesting witnesses. Under such a will, however, the devisee could 
not take the legal estate or hereditas, but only the equitable estate 
or bonorum possessio, §§ 119, 120, 148. 

Before the time of Justinian, a form of will had been established 
deriving its validity from three orders of legislation (jus triperti- 
tum), the civil law, the praetorian edict, and the imperial constitu- 
tions. In accordance with the last, the witnesses were required to 
sign or subscribe their names; in accordance with the praetorian 
edict they were required to attach their seals (signacula); and in 
accordance with the civil law, their number was required to be seven 
(a number obtained by adding the libripens and familiae emptor to 
the five witnesses of the mancipation), and the whole formality of 
attestation and publication was required to be continuous, that is, to 
proceed from beginning to end without interruption or interposition 
of any other business. Inst. 2, 10, 3. 

Another form of will is mentioned by Justinian as perfectly valid 
at civil law, the Nuncupative will, consisting solely of an oral 
declaration in the presence of seven witnesses, Inst. 2, 10, 14. A 
modification of this produced one of the most solemn forms of testa- 
ment. The nuncupation was made before the Praeses provinciae, 
or magistrates of the municipal senate (curia); and thereupon a 
memorandum or protocol (insinuatio) of the testator's dispositions 
was made at length in the public records (acta or gesta) of the 
proceedings of the governor or senate. This was called a publie 
testament. Savigny, Vermischte schriften, 27. 

By English law, 1 Vict. c. 26, only two witnesses are required to 
a will, whether of real or personal estate. The will must be in 
writing, signed at the end by the testator, or by some other person 
in his presence and by his direction; and such signature must be 
made or acknowledged by the testator in the presence of the two 
witnesses, who must be present at the same time, and who must 
attest and subscribe the will in the presence of the testator. 


208 


DE RERUM UNIVERSITATIBUS. [1.§§ 109-114. 


DE TESTAMENTIS MILITUM. 


§ 109. Sed haec diligens obser- 
uatio in ordinandis testamentis mi- 
ltibus propter nimiam inperitiam 
eonstitutionibus principum remissa 
est. nam quamuis neque legitimum 
numerum testium adhibuerint ne- 
que uendiderint familiam neque 
nuncupauerint testamentum, recte 
nihilo minus testantur. 

$ 110. Praeterea permissum est 
lis et peregrinos et Latinos institu- 
ere heredes uel zis legare; cum 
alioquin peregrini quidem ratione 
ciuili prohibeantur capere heredi- 
tatem legataque, Latini uero per 
legem Iuniam. 

$ 111. Caelibes quoque qui lege 
Iulia hereditatem legataque capere 
uetantur; item orbi, id est qui 
liberos non habent, quos lex Papia 
plus quam dimidias partes heredi- 
tatis legatorumque capere «etat, ex 
militis testamento solidum captunt. 

(48 uersus in C perierunt 

| prohibentur hi— L- 
(6 uersus in C legi nequeunt) 

|——eius more faciant—| 
XXX annorum——| 
(8 uersus in C legt nequeunt) 
res 
(2 uersus in C legi nequeunt) 


gun — | — 























$ 109. But from these strict rules 
in the execution of a will soldiers, 
in consideration of their extreme 
ignorance of law, have by imperial 
constitutions a dispensation. For 
neither the legal number of wit- 
nesses, nor the ceremony of manci- 
pation or of nuncupation, is neces- 
sary to give force to their will. 

§ 110. Moreover, they may make 
aliens and Latini Juniani their heirs 
or legatees, whereas under other 
wills an alien is disqualified from 
taking a succession or legacy by the 
civil law, and Latini Juniani by the 
lex Junia. 

§ 111. Celibates also, whom the 
lex Julia disqualifies for taking 
successions or legacies, and child- 
less persons whom the lex Papia 
prohibits from taking more than 
half a succession or legacy (see 
§ 286), are exempt from these in- 
capacities under the will of a 
soldier. 


§ 109. The military will, which superseded the old testament in 


procinctu, could only be executed during actual service, and in this 
period only when the soldier was in camp, not when he was at 
home or on leave of absence. A will made after the soldier’s dis- 
charge from service or during his absence from camp was governed 
by the same rules as the will of a civilian (paganus). A military 
will, executed without the ordinary formalities, only remained valid 
during a year after discharge from service. Inst. 2, 11, 3. 


TESTAMENTIFACTIO. 


§ 112. —ex auctoritate diui Ha- $112. Butasenatusconsult under 
driani senatusconsultum factum est, the late emperor Hadrian, as already 


n. § 109-114. ] 





quo permissum est | feminis 
etiam sine coemptione te|stamen- 
tum facere, 81 modo non minores 
essent annorum XII, scilicet. ut 
quae tutela liberatae non essent, 
iutore auctore testari deberent. 

$113. Videntur ergo melioris 
condicionis esse feminae quam mas- 
culi; nam masculus minor annorum 
Xii testamentum facere non potest, 
etiamsi tutore auctore testamentum 
facere uelit, femina uero post Xii 
annum testamenti faciendi tus nan- 
ciscitur. 

$114. Igitur si quaeramus an 
ualeat testamentum, inprimis ad- 
uertere debemus an is qui id fecerit, 
habuerit testamenti factionem ; de- 
inde, si habuerit, requiremus an 
secundum iuris ciuilis regulam tes- 
tatus sit, exceptis militibus, quibus 
propter nimiam ?nperitiam, ut dixi- 
mus, quomodo uelint uel quomodo 
posrnt, permittitur testamentum 
facere. 


DE TESTAMENTIS MILITUM. 


209 


mentioned (1$ 115 a), made coemp- 
tion unnecessary, and permitted 
women to make a will on attaining 
12 years of age, only requiring their 
guardian's authority if they were 
gtill in a state of pupilage. 

$113. Women, then, are in & 
better legal position than males, for 
a male under 14 years of age can- 
not make a will even with his 
guardian’s sanction, but a female 
acquires the capacity of devising as 
soon as she is 12 years old. 


§ 114. Accordingly, to determine 
the validity of a will, we must first 
ascertain whether the testator had 
testamentary capacity; next, if he 
had, whether he conformed to the 
requisitions of the civil law in its 
execution, with this reservation, 
that soldiers, on account of their 
extreme ignorance of law, as was 
mentioned, are allowed to make 
their wills in any way they like and 
in any way they can. 


§ 112. On the lost leaf of the Veronese codex Gaius proceeded to 
mention the classes who were incompetent to make a will. Among 
these would be the filiusfamilias, who could only dispose of his 


peculium castrense and quasi castrense, 


10; Epit. 2, 2, 1. 


Cf. Inst. 2, 12 ; Ulp. 20, 


Testamentifactio is a term applied, (A) to the Testator, Testa- 
mentifactio activa; (B) to the object of his bounty, Testamenti- 


factio passiva ; (C) to the witnesses. 


these applications. 


Let us consider it in each of 


(A) Testamentifactio activa sometimes comprehends all the 


conditions (physical included) of testamentary capacity, and then it 
excludes children and lunatics: but the proper meaning of testa- 
mentifactio is the qualification by Status for mancipatio, and conse- 
quently for the mancipatory will: that is to say, it is equivalent 
to Commercium, and therefore is ascribed to all cives, all Latini, 
and all aliens who have received a grant of commercium. 

To make a will, however, a testator must have not only personal 
capacity, but he must also have property to leave. This latter 
condition is necessarily wanting to the Filiusfamilias and to the 

P 


210 DE RERUM UNIVERSITATIBUS. [m.$$109-114. 


Latinus Junianus: in their case, therefore, Testamentifactio does 
not mean capacity of being testator, but of playing some other 
part in the mancipatory will; i.e. of being devisee, or legatee, 
or witness. 

The testator’s capacity is required at two periods: at the time of 
making the will and at the time of the testator's death. The strict 
civil Jaw also required the continuance of capacity during the in- 
terval between these dates: but the praetor disregarded any inter- 
vening incapacity (capitis diminutio), and, notwithstanding such an 
event, gave the will efficacy by granting to the devisee, not the 
civil hereditas which was beyond his power, but juxta-tabular pos- 
eession (bonorum possessio juxta or secundum tabulas) 2 $ 147, 
Ulpian 28, 6. Exigit praetor ut is cujus bonorum possessio datur 
utroque tempore jus testamenti faciendi habuerit, et quum facit 
testamentum et quum moritur . , . . Sed si quis utroque tem- 
pore testamentifaetionem habuerit, medio tempore non habuerit, 
bonorum possessio secundum tabulas peti poterit, D. 37, 11, 1, 8. 

Two other cases of incapacitation were cured by the principle of 
postliminy and the lex Cornelia testamentária : if a testator suffered 
capitis diminutio maxima by falling into the hands of the enemy, 
when he returned from captivity his will reacquired validity by the 
operation of postliminy: if he never returned his will obtained 
validity by the fiction that he died à moment before his capture, 
Quatenus tamen diximus ab hostibus capti testamentum irritum 
fieri, adjiciendum est postliminio reversi vires suas recipere jure 
postliminii, aut si ibi decedat lege Cornelia confirman, D. 28, 3, 
6, 12. In omnibus partibus juris is qui reversus non est ab 
hostibus, quasi tunc decessisse videtur cum captus est, D. 49, 15, 18, 
Ulpian, 28, 5, | 

The physical conditions of testamentary incapacity (infancy, 
Junacy) are only critical.at the date of making the will. 

The praeterition of suus heres, another circumstance which as 
well as testamentifactio affected the validity of a will, was at civil 
law critical both at the time of making the will and at the time of 
the testator's death and in the interval: but in later times this 
defect of a will was healed by the praetor who granted juxta-tabular 
possession if the defect only existed at the first and third period, 
D. 28, 3, 12, so. that, practically the existence of a pretermitted 
suus heres at the time of the testator’s death was alone important, 

(B) The Honoratus or the recipient of the testator's bounty, 


1. § 109-114.] TESTAMENTIFACTIO, 211 


whether heres or legatarius, required testamentifactio passiva, 
which like testamentifactio activa meant Commercium or capacity 
of taking part in mancipatio. Accordingly both a filiusfamilias 
and a Latinus could be heres or legatee (for the limitation, however, 
of the capacity of Latinus Junianus by the lex Junia Norbana 
see below). This capacity must exist at three periods (tria tem- 
pora): the making of the will, the death of the testator, and the 
acquisition of the succession by the heres (aditio). The interval 
between the making of the will and the death of the testator was 
immaterial, Inst. 2, 19, 4, D. 28, 5, 59, 4. The interval between 
the death of the testator and the aditio of the heres was material, 
because on the incapacitation of the first heres institutus the in- 
heritance would be instantaneously delated (offered for acceptance) 
to the heres substitutus or to the successor ab intestato, 

The looking to the capacity of Honoratus at the date of making 
the will as well as Iater, though apparently based on no motives of 
testamentary policy, but only due to the mancipatory form of the 
primitive will, which was ostensibly a mancipatio inter vivos, 
le. a disposition taking effect in the lifetime of the mancipator, 
was retained in Justinian’s legislation after wills had. lost their 
Mancipatory form. — , 

In respect of Honoratus it is necessary to distinguish institutio 
from acquisitio (aditio); and testamentifactio passiva, competence 
for institution, from capacitas or jus capiundi, competence for 
acquisition. Testamentifactio passiva was required at the date of 
the making of the will ; and in ite absence a disposition was deemed 
to be unwritten (pro non scripto habetur); and the property dis- 
posed of went by Accretio to the other heredes scripti. Capacitas, 
in ite distinctive sense, was only required at the date of acquisition ; 
and in ite absence the unacquired property became caducous, and 
devolved in part or in whole to certain persons or to the state, 
38 determined by the laws of caducity. 

Incapaces, or persons who from want of capacitas forfeited part 
or the whole of the testator's bounty, comprehended : 

(1) Latini Juniani, who were made incapable by the lex Junia 
Norbana, 1 $ 23, 2 $ 110, 2 § 275. But see Ulpian, 17, 1. 

(2) The unmarried (coelebs), married but childless (orbus), 
widower or divorced with children (? pater solitarius), who were 
made partially incapable by the lex Papia Poppaea : 

(3) Husband or wife (vir et uxor), who by the same law could 

PA 


212 DE RERUM UNIVERSITATIBUS. (1. §§ 109-114. 


only take one tenth of a heritage, and another tenth for every 
living child by a former marriage: further, another tenth for a 
common child that lived to the day of naming (nominum dies), or 
two tenths for two such children, but not more. In addition to 
their tenth, the husband or wife might have the usufruct, and, if 
not childless, the property in a third, Ulpian, 15. 

These disqualifications were not recognized in Justinian’s legis- 
lation: so that at that period the distinction between capacitas and 
testamentifactio passiva had lost much of its importance. We find, 
however, under Justinian the penalty of forfeiture (ereptio, ablatio) 
for Indignitas. Indigni were persons deemed on various grounds 
unworthy of the testator’s bounty. The devolution of the pro- 
perty intended for them followed different rules from those which 
governed other cases of Incapacity. See § 151, and Vangerow, 

429. 

: (C) Testamentifactio was further applied to designate the quali- 
fication of the witnesses to a will This was only required to 
exist at one period, the date of the execution of the will. Savigny, 
$ 898. 

$ 118. By English law, the age at which a person was competent 
to make a will was formerly the same as by Roman law, namely, 
12 years for females, 14 years for males; but now, by 1 Vict. c. 26, 
no one is competent to make a will before attaining 21 years 


of age. 


BONORUM POSSESSIO SECUNDUM TABULAS. 


$ 115. Non tamen, ut iure ciuili $ 115. The civil law, however, is 


valeat testamentum, sufficit ea ob- 
seruatio quam supra exposuimus de 
familiae uenditione et de testibus 
et de nuncupationibus. 

$ 116. (sed) ante omnia requi- 
rendum est, an institutio heredis 
sollemni more facta sit; nam aliter 
facta institutione nihil proficit fami- 
liam testatoris ita uenire testesque 
ita adhibere et tta nuncupare tes- 
tamentum, ut supra diximus, 


$117. Sollemnis autem institutio 
haec est TITIVS HERES ESTO; sed 
et illa iam conprobata uidetur 
TITIVM HEREDEM ESSE IVBEO; at 


not satisfied by observing the requi- 
sitions hereinbefore explained re- 
specting mancipation, attestation, 
and nuncupation. 

§ 116. Above all things, we must 
observe whether the institution of 
an heir was in the sacramental 
terms; for if the institution of an 
heir was not in the traditional form, 
it is unavailing that the mancipa- 
tion, attestation, nuncupation, were 


r. 

$ 117. The solemn form of insti- 
tution is this : ‘Be Titius my suc- 
cessor. The following also seems 
now to be recognized: ‘I order 


m. § 115-122.] BONORUM POSSESSIO TESTATI. 


illa non est conprobata TITIVM 
HEREDEM ESSE VOLO; sed et illae 
& plerisque inprobatae sunt TITIVM 
HEREDEM INSTITVO, item HEREDEM 
FACIO. 


$118. Obseruandum praeterea 
est, ut si mulier quae in tutela est, 
faciat testamentum, tutore auctore 
facere debeat ; alioquin inutiliter 
iure ciuili testabitur. 

$119. Praetor tamen si septem 
signis testium signatum sit testa- 
mentum, scriptis heredibus secun- 
dum tabulas testamenti bonorum 
(possessionem) pollicetur; (et) & 
nemo sit, ad quem ab intestato iure 
legitimo pertineat hereditas, uelut 
frater eodem patre natus aut pa- 
truus aut fratris filius, ita poterunt 
&ripi heredes retinere heredita- 
tem. nam idem iuris est et si alia 
ex causa testamentum non ualeat, 
uelut quod familia non uenierit aut 
nuncupationis uerba testator locu- 
tus non sit. 

§ 120. Sed uideamus an etiamsi 
frater aut patruus extent, potiores 
&riptis heredibus habeantur. re- 
aripto enim imperatoris Antonini 
aignificatur eos qui secundum tabu- 
las testamenti non iure factas bo- 
norum possessionem petierint, posse 
sduersus eos qui ab intestato uin- 
dicant hereditatem, defendere se per 
exceptionem doli mali. 

$121. Quod sene quidem ad 
masculorum testamenta pertinere 
certum est; item ad feminarum 
quae ideo non utiliter testatae sunt, 
quia uerbi gratia familiam non uen- 
diderint aut nuncupationis uerba 
locutae non sint; an autem et 
ad ea testamenta feminarum quae 
sine tutoris auctoritate fecerint, 
haee constitutio pertineat, uide- 
bimus 


§ 122. Loquimur autem de his 
scilicet feminis quae non in legitima 
parentum aut patronorum tutela 


213 


that Titius be my successor.’ ‘I 
wish Titius to be my successor’ is 
not admitted ; and most reject the 
following: *I institute Titius my 
successor, 'I make Titius my suc- 
cessor.’ 

§ 118. It is also to be remem- 
bered that a woman who has a 
guardian must have her guardian’s 
authority to devise, or her will is 
invalid at civil law. 

§ 119. The praetor, however, if 
the will is attested by the seals of 
seven witnesses, promises to put the 
devisees in juxta-tabular possession, 
and if there is no one to take 
the legal inheritance by descent, 
a brother by the same father, for 
instance, a father’s brother, or a 
brother's son, the devisees are se- 
cure from eviction; for the same 
rule obtains if the will 1s invalid 
from any other cause, such as the 
absence of mancipation or nuncu- 
pation. 


$ 120. But are not even a bro- 
ther and paternal uncle postponed 
to the devisees? for the rescript of 
the emperor Marcus Aurelius An- 
toninus (or A. Pius) permits the 
devisee who has obtained juxta- 
tabular possession under an informal 
will to repel the claimants in intes- 
tacy by the plea of fraud. 


§ 121. This applies to the wills 
of males and females which are in- 
formal for such faults as want of 
mancipation or nuncupation : whe- 
ther also to wills of females who 
devise without their guardian's 
authority, is a question. 


$122. We are not speaking of 
females who are the statutory 
wards of their parent or patron, 


214 


sunt, sed [de his] quae alterius 
generis tutores habent, qui etiam 
inuiti coguntur auctores fieri ; alio- 
quin parentem et patronum sine 
auctoritate eius facto testamento 
non summoueri palam est. 


DE RERUM UNIVERSITATIBUS. (rir. $$ 115-122. 


but of those who are wards of the 
other sort of guardian, whose 
guardians are compellable to lend 
their authorization; for a parent 
or patron can certainly not be dis- 
inherited by an unauthorized will. 


$ 117. The necessity of using formal words in the institution of 
an heir was abolished by a constitution of Constantine, Constantius, 
and Constans, a.p. 889, Cod. 6, 23, 15. 

As to the nomenclature employed in the following exposition of 
Roman testamentary law, it must be observed that Heres corre- 
sponds sometimes to the Heir, sometimes to the Devisee, sometimes 
to the Executor, of English jurisprudence. In the language of 
English jurisprudence, Heir denotes a successor to real estate, while 
Executor denotes a successor to personal property. Again, Heir 
denotes a successor to real estate by descent, Devisee denotes a 
successor to real estate under a will. Accordingly, to avoid mis- 
leading an English reader by false associations, in translating the 
word Heres, Successor has generally been employed instead of Heir, 
without, however, entirely: renouncing the use of the shorter word, 
whieh is often convenient from its relation to the indispensable 
terms disinherit and disinheritance. 

Devisee has generally been employed, 1n preference to Executor, 
as a translation of scriptus heres, but it must then be stripped of 
any reference to the distinction between property in money and 
property in land. The word Executor is not available as a transla- 
tion of heres. The Executor of English law, unless also a legatee, 
holds a merely onerous office; whereas the heres of Roman law was 
always a beneficiary. The Roman heres, in fact, united the cha- 
racters of the English executor and residuary legatee: and the lex 
Falcidia provided that the residue should always amount to at least 
a fourth of the testator’s property. 

Bequest (which in English law is related to personalty as devise 
to realty) has been used in connection with legacies, i.e. with dis- 
positions in favour of legatarius as opposed to heres; in favour, 
that is, of a person who takes a single thing belonging to the 
testator, not his familia, or the Universitas of his rights and 
obligations, or even a fraction of this Universitas, 

§ 119. The praetor only sustained a testament in spite of its 
civil invalidity when the grounds of civil invalidity were merely 


1.8115-122.]] BONORUM POSSESSIO TESTATI. 215 


want of external formalities (mancipation, nuncupation), not against 
more material defects, such as preterition of self-successor, § 148, 
D. 87,2, 7. He sustained it, however, against the preterition of 
suus postumus, if suus postumus died before the testator, D. 28, 
8, 12. 

§ 120. The praetorian succession, or right of succession intro- 
duced by the praetor under the name of Bonorum possessio, some- 
times beside, and sometimes instead of, civilis hereditas, may be 
divided into testate succession and intestate succession. The latter 
branch (bonorum possessio intestati) was firmly established at an 
earlier period than the former (bonorum possessio secundum tabu- 
las). The rescript of Marcus Aurelius, mentioned by Gaius, may 
be regarded as having definitively established the vahdity of the 
praetorian testament; in other words, as having raised in respect of 
validity bonorum possessio testati to the level of bonorum possessio 
intestati. 

In its origin Bonorum possessio was probably only the pro- 
visional or interimistic possession granted to one of the parties 
ma suit of Hereditatis petitio. This suit was a species of Real 
action (vindicatio), and in all Real actions it is necessary to deter- 
wine which of the litigants shall have possession during the 
pendency of the litigation. In the earliest period, that of statute- 
process (legis actio), the interim possession was called vindiciae, and 
the praetor who assigned it to one of the parties was said vindicias 
dicere, 4 § 16. In making the grant of vindiciae he was probably 
governed by the same rule which afterwards prevailed when the 
question of interim possession was determined by application of the 
Interdicts Utrubi and Uti possidetis: that is to say he probably 
allowed the party in actual possession to continue in possession. 
But this rule was inapplicable to the case of Hereditatis petitio, for 
at the decease of the proprietor who leaves an inheritance not one of 
the claimants to succeed is in actual possession. Here accordingly 
the grant was governed by different principles : if a will, prima facie 
valid, was propounded, possession was granted to the claimant 
under the will (bonorum possessio secundum tabulas): if no will 
was propounded possession was granted to the civil heirs (bonorum 
possessio ab intestato), the self-successor or descendant (suus heres) 
being preferred to the agnates or collaterals (legitimi) At a 
later period, persons who were not recognized as heirs by the 
civil code, namely cognates, and the wife or husband, were put 


216 DE RERUM UNIVERSITATIBUS. [11. §§ 115-122. 


in possession in default of civil heirs: and children (liberi) who 
by emancipation had lost the character of self-successors, were 
nevertheless admitted to possession in the first rank just as if 
they had continued unemancipated. The right of provisional pos- 
session of course corresponded to a presumptive right of definitive 
ownership. 

Although a will was propounded, yet if a descendant of the 
testator was therein pretermitted (praeteritus), i.e. not expressly 
either instituted successor or disinherited, possession was not 
granted to the devisees but to the pretermitted descendant (bono- 
rum possessio contra tabulas). Contra-tabular possession was some- 
times equivalent to intestacy, sometimes to partial testacy. If the 
praeteritus was suus heres the will was absolutely void: if the 
praeteritus was an emancipated son, although he obtained contra- 
tabular possession, he was bound, as we shall see, by some of the 
dispositions of the will; so that his succession was partly intestate, 
partly testate. 

§ 122. In ancient Rome, females, even after attaining their 
majority, were subject to perpetual guardianship. In the time of 
Gaius, the only effectual guardianship to which they continued 
subject appears to have been that of ascendants and patrons, cf. 1, 
189-193 ; 2, 85, 112. By the time of Justinian even this had 
ceased, for he mentions without any reservation that the tutelage of 
women ceases on their attaining the age of 12, Inst. 1, 22. 


DE EXHEREDATIONE LIBERORUM. 


§ 123. Item qui filium in potes- 
tate habet, curare debet ut eum uel 
heredem instituat uel nominatim 
exheredet ; alioquin si eum silentio 
praeterierit, inutiliter testabitur, 
adeo quidem, ut nostri praeceptores 
existiment, etiamsi uiuo patre filius 
defunctus sit, neminem heredem ex 
eo testamento existere posse, quia 
scilicet statim ab initio non con- 
stiterit institutio. sed diuersae 
&cholae auctores, siquidem filius 
mortis patris tempore uiuat, sane 
inpedimento eum esse scriptis here- 
dibus et illum ab intestato heredem 


$ 123. Moreover, a testator who 
has a son in his power must take 
care either to institute him heir or 
to disinherit him, for passing him 
over in silence vacates the will. 
So much so, that according to the 
Sabinians, even if the son die in 
the lifetime of the father, no devisee 
can take under the will because of 
its original nullity. But, according 
to the Proculeians, although the 
son, if alive at the time of his 
father's death, bars the devisees 
and takes as self-successor by in- 
lestacy, yet, if the son die before 


1. §§ 123-137.] DE EXHEREDATIONE LIBERORUM. 


fier1 confitentur; si uero ante mor- 
tem patris interceptus sit, posse ex 
testamento hereditatem adiri pu- 
tant, nullo iam filio inpedimento ; 
quia scilicet existimant (non) sta- 
tim ab initio inutiliter fieri testa- 
mentum filio praeterito. 

$ 124. Ceteras uero liberorum 
personas si praeterierit testator, 
ualet testamentum, (sed) praete- 
ritae istae personae scriptis heredi- 
bus in partem aderescunt, si sui 
heredes gint, in uirilem, si extranei, 
in dimidiam. id est si quis tres 
uerbi gratia filios heredes institu- 
erit et filiam praeterierit, filia ad- 
crescendo pro quarta parte fit heres, 
et ea ratione idem consequitur, quod 
ab intestato patre mortuo habitura 
esset; a£ si extraneos ille heredes 
instituerit et filam  praeterierit, 
filia adcrescendo ex dimidia parte 
fit heres. quae de filia diximus, 
esdem et de nepote deque omnibus 
liberorum personis sew masculini 
seu feminini sexus dicta intellege- 
mus. 

$125. Quid ergo est? licet eae 
secundum ea quae diximus, scriptis 
heredibus. dimidiam partem. detra- 
hant, tamen praetor eis contra tabu- 
las bonorum possessionem promittit, 
qua ratione extranei heredes a tota 
hereditate repelluntur et efficiuntur 
sine re heredes. 

$ 126. Et hoc iure utebamur, 
quasi nihil inter feminas et mas- 
culos interesset ; sed nuper impera- 
tor Antoninus significauit rescripto 
suo non plus nancisci feminas per 

rum possessionem, quam quod 

iure adcrescendi consequerentwr. 
quod in emancipatarum quoque 
persona obseruandum est, «ul hae 
quoque, quod adcrescendi iure habi- 
turae eesent, si in potestate fuissent, 
id i ipsum etiam per bonorum pos- 
sessionem habeant. 


217 


the father, the devisees may suc- 
ceed, being no longer barred by 
the son, assuming that the will was 
not absolutely vacated by his silent 
pretermission. 


§ 124. By the pretermission of 
other self-successors a will is not 
avoided, but the omitted persons 
come in to share with the devisees, 
taking an aliquot part if the latter 
are self-successors, a moiety if they 
are strangers. Thus if a man has 
three sons and makes them his 
successors, saying nothing of his 
daughter, the daughter comes in 
as co-successor and takes a fourth 
of the estate, being deemed entitled 
to the portion which would have 
devolved to her by intestacy: but 
when the devisees are strangers, 
the daughter, if passed over, comes 
in and takes a moiety. What has 
been said of the daughter applies 
to the son’s children, male and 
female. 

$ 125. But though a female ac- . 
cording to this statement of the 
law only deprives the devisees of a 
moiety, the praetor promises to give 
her contra-tabular possession, 80 
that the devisees, if strangers, lose 
the whole, and their succession is 
ineffective. 

§ 126. And this was once the 
law, and there was no distinction 
between males and females; but 
A. Pius (or M. Aurelius) has re- 
cently decided that female self- 
successors shall not take more by 
contra-tabular possession than they 
would by coming in as coheirs at 
civil law. And the same rule ap- 
plies to emancipated daughters, 
namely, that the shares they would 
have had as coheirs had they not 
been emancipated shall be the mea- 
sure of what they obtain by contra- 
tabular possession. 


218 


§ 127. Sed siquidem filius a 
patre exheredetur, nominatim ex- 
heredari debet; alioquin non uide- 
tur exheredari. nominatim autem 
exheredari uidetur, siue ita exhe- 
redetur TITIVS FILIVS MEVS EX- 
HERES ESTO, siue ita FILIVS MEVS| 
EXHERES ESTO, non adiecto proprio 
nomine. 

$128. Ceterae uero liberorum 
personae uel feminini sexus uel 
masculini sa|tis inter ceteros ex- 
heredantur, id est his uerbis CETE|RI 
OMNES EXHEREDES 8YNTO, quae 
uerba— post institutionem heredum 
adici solent, Sed hoc ita—|. 


§ 129. Nam praetor omnes uirilis 
sexus liberorwm personas, | id est 
nepotes quoque et pronepotes | 











$130. Postumi quoque libert wel 
heredes institui debent uel exhere- 
dari. 

$131. Et in eo par omnium 
condicio est, quod (et) in filio poe- 
twmo et in quolibet ex ceteris liberis 
Blue feminini sexus siue masculini 
praeterito ualet quidem testamen- 
tum, sed postea agnatione postumt 
&iue postumae rumpitur, et ea ra- 
tione totum infirmatur. ideoque si 
mulier, ex qua postumus aut pos- 
tuma sperabatur, abortum fecerit, 
nihil inpedimento est scriptis here- 
dibus ad, hereditatem adeundam. 


- $132. Sed feminini quidem sexus 
personae wel nominatim uel inter 
ceteros exheredari solent, dum tamen 
st inter ceteros exheredentur, ali- 
quid eis legetur, ne utdeantur per 
obliuionem praeteritae esse. mas- 
culini uero sexus personas placuit 
non aliter recte exAeredari, misi 
nominatim. exheredentur, hoc scilt- 


DE RERUM UNIVERSITATIBUS. (rn.5$123-137. 


$ 127. A son must be disinherited 
individually ; otherwise the disheri- 
son isinvalid. Individualdisherison 
may be expressed in these terms: 
Be Titius my son disinherited : or 
in these: Be my son disinherited, 
without inserting his name, 


$ 128. Other male and all female 
self-successors may be sufficiently 
disinherited inter ceteros thus: 
Be the remainder disinherited, 
which words usually follow the 
institution of the heir: this, how- 
ever, is only the rule of the civil 
law. 
$ 129. For the Praetor requires 
all male self-successors, sons, grand- 
sons, greatgrandsons, to be disin» 
herited individually, although he 
permits females to be disinherited in 
an aggregate, and, failing such dis 
herison, promises them the contra- 
tabular succession. 

§ 130. Children born after the 
making of the will must either be 
instituted heirs or disinherited : 

§ 131. and in this respect are 
similarly privileged that, if a son 
or any other self-successor, male or 
female, born after the making of 
the will, be passed over in silence, 
the will is originally valid, but sub- 
sequently rescinded and avoided by 
the birth of the child; so that if 
the woman from whom a child was 
expected have an abortive delivery, 
there is nothing to prevent the 
devisees from taking the succes- 
sion. 

§ 132. Female self-successors born 
after the making of the will may be 
either individually or generally dis- 
inherited, with this proviso, that if 
they are generally disinherited, some 
legacy must be left them in order 
that they may not seem to have 
been forgotten and pretermitted. 
Male  self-successors, sons and 


1. §§123-137.] DE EXHEREDATIONE LIBERORUM. 


cet modo QVICVMQVE MIHI FILIVS 
GENITVS FVERIT, BX|HERES ESTO, 











$ 132a. ——| potest u——|— 
(4 uersus in C legi nequeunt) 
jagat——|n——|, 


§ 133. Postumorum autem loco 
sunt et hi qui in sui heredis | locum 
suecedendo quasi agnascendo fiunt 
parentijbus sui heredes. ut ecce si 
filium et ex eo nepotem ne|ptemue 
in potestate habeam, quia filius gradu 
praecedit, | ts solus iura sui heredis 
habei, quamwis nepos quo|que et 
neptis ex eo in eadem potestate sint ; 
sed st filius meus me uiuo moria- 
tur, aut qualibet ratione exeat de 
potestate mea, incipit nepos neptisue 
tn eius locum succe|dere, et eo modo 
lura suorum heredum quas agna- 
tone nanciscuntur. 


$134. Ne ergo eo inodo rumpa- 
tur mihi te|stamentum, sicut ipswn 
fium uel heredem instituere uel | 
exheredare debeo, ne non iure fa- 
cam testamentum, ita et nepotem 
neptemue ex eo necesse est mihi 
uel heredem | instituere. uel exhere- 
dare, ne forte, me uiuo filio mortuo, 
succedendo in locum eius nepos nep- 
hewe quasi agnatione rumpat tes- 
tamentum ; idque lege Iunia Vel- 
laea prouisum est, in qua simul 
exberedationis modus notatur, ut 
uirilis sexus (postumi) nominatim, 
feminini uel nominatim uel inter 
ceteros. exheredentur, dum tamen 
us qui inter ceteros exheredantur, 
aliquid legetur. 


219 


further lineal descendants, are held 
not to be duly disinherited un- 
less they are disinherited indivi- 
dually, thus: Be any son that shall 
be born to me disinherited. 


$133. Withchildren bornafterthe 
making of the will are classed chil- 
dren who by succeeding to the place 
of self-successors become subsequent 
self-successors like the afterborn. 
For instance, if a testator have a 
son, and by him a grandson or 
granddaughter under his power, 
the son being nearer in degree 
alone has the rights of self-suc- 
cessor, although the grandson and 
granddaughter are equally in the 
ancestors power. But if the son 
die in the lifetime of the testator, 
or by any other means pass out of 
the testator’s power, the grandson 
and granddaughter succeed to his 
place, and thus acquire the rights 
of self-successors to the testator just 
as if they were children born after 
the making of the will. 

$134. To prevent this subse- 
quent avoidance of my will, just 
as & son must be either instituted 
heir or disinherited individually to 
make a will originally valid, so a 
grandson or granddaughter by a 
son must be either instituted heir 
or disinherited, lest if the son 
die in the testator's lifetime the 
grandson and granddaughter should 
take his place and vacate the will 
just as if they were children born 
after its execution. The lex Junia 
Velleia allows this and directs them 
to be disinherited like children 
born after a will is executed, 
that is to say, males individually, 
females either individually or col- 
lectively, provided that those who 
are disinherited collectively receive 


a legacy. 








220 


§ 135 Zmancipatos liberos iure 
ciuili neque heredes instituere ne- 
que exheredare necesse est, quia 
non sunt sui heredes; sed praetor 
omnes tam feminini quam mascu- 
lini sexus si heredes non insti- 
tuantur, exheredari iubet, uirilis 
sexus nominatim, feminini ue/ no- 
minatim uel inter ceteros; quodsi 
neque heredes instituti fuerint ne- 
queita, ut supra diximus, exheredati, 
praetor promittit eis contra tabulas 
bonorum possessionem. 

$ 135a. In potestate patrie non 
sunt, qui cum eo ciuitate Romana 
donati sunt nec in accipienda ciui- 
tate Romana pater petiit ut eos in 

testate haberet, aut, si petzit, non 
Inpetrauit; nam qui (in) potes- 
tatem patris ab imperatore redi- 
guntur, nihil differunt a—. 


$136. Adoptiui fili quamdiu 
manent in ado|ptione, naturalium 
loco sunt; emancipsti uero (a) 
patre adoptiuo neque iure ciuili 
neque quod ad edictum praetoris 
pertinet, inter liberos numerantur. 


$ 137. Qua ratione accidit, ut ex 
diuerso quod ad naturalem paren- 
tem pertinet, quamdiu quidem sint 
in adoptiua familia, extraneorum 
numero habeantur; si uero eman- 
cipati fuerint ab adoptiuo patre, 
tunc incipiant in ea causa esse, 
qua futuri essent, si ab ipso natu- 
rali patre (emancipatz) fuissent. 


DE RERUM UNIVERSITATIBUS. [1. §§ 123-137. 


$ 135. Emancipated children by 
civil law need neither be appointed 
heirs nor disinherited because they 
are not self-successors. But the Prae- 
tor requires all, females as well as 
males, unless appointed heirs, to be 
disinherited, males separately, fe- 
males collectively, and if they are 
neither appointed heirs nor disin- 
herited as described, the Praetor 
promises to give them the contra- 
tabular possession. 


$ 135a. Children who are made 
Roman citizens along with their 
father are not subject to his power, 
if at the time he either omitted to 
petition for, or failed to obtain, a 
grant of patria potestas: but those 
who are subjected to power by the 
emperor differ in no respect from 
those under power from time of 
birth. 

$ 136. Adoptive children, solong 
as they continue in the power of the 
adoptive father, have the rights of his 
natural children: but when eman- 
cipated by the adoptive father they 
neither at civil law nor in the Prae- 
lors edict are regarded as his 
children, 

§ 187. And conversely in respect 
of their natural father as long as 
they continue in the adoptive family 
they are strangers: but when eman- 
cipated by the adoptive father they 
have the same rights in their natural 
family as they would have had if 
emancipated by their natural father 
(that is, unless either instituted 
heirs or disinherited by him, they 
may claim the contra-tabular suc- 
cession.) 


§ 128. The necessity of disinheriting a suus heres is grounded 
on the principle of primitive law, that the child is co-proprietor 
with the parent: hence, unless something occurs to divest the 
child of his property, he will simply become sole proprietor by 


survivorship on the death of his father. 


‘In 


Dig. 38, 2, 11. 


11. § 123-137.] DE EXHEREDATIONE LIBERORUM. 221 


self-succession we have a still more striking instance of an un- 
broken continuity of dominion, for there appears to be no vesting 
of new property by descent, but the heir is deemed to have been 
previously proprietor even during the lifetime of the father. Hence 
the names filiusfamilias and paterfamilias, implying a similar legal 
relation to the patrimony, though one is parent and the other child. 
Therefore the death of the parent occasions no acquisition of new 
property by descent, but only an increased freedom in the adminis- 
tration of already existing property. Hence, even in the absence 
of testamentary institution, a self-successor is proprietor : and it 
is no objection to this, that a parent has the power of disin- 
henting a self-successor, for he also had the power of putting him 
to death.’ 

The characteristic of the Roman will that it grounded a Universal 
succession (unlike the English will which may be a merely Partial 
definition of the succession), which is expressed in the maxim: 
Nemo pro parte testatus, pro parte intestatus decedere potest, had 
its historic origin, not probably in a perception of its manifold 
utility, but in the primitive form of the will—a proposal laid 
before the legislative assembly for its sanction, § 101. The as- 
sembly could no more judge of the justice of a proposed arrange- 
ment without having laid before it the whole plan of succession 
than i£ could judge of the fairness of a contract by inspection of 
a single paragraph. It could not therefore allow the testator 
merely to lay before it certain partial modifications of the intes- 
tate succession and leave the rest of his inheritance to follow the 
general rules of intestacy, without further informing the assembly 
of their operation. This consideration involves the rules respecting 
the effect of Praeteritio. If the testator’s dispositions were valid 
in spite of Praeteritio, he would have it in his power to commit 
a fraud upon the assembly by suppressing some element that was 
material to enable them to form a judgment. Accordingly Prae- 
teritio was made to defeat itself, in the case of the son by nullifica- 
tion (inutilitas), in the case of other issue by Accretio, § 124. How- 
ever, although by the Civil law Praeterition avoided a will and was 
not cured by the death of Praeteritus before Testator, yet Praetorian 
law only regarded the date of Testator’s death, and, if no Praeteritus 
was then existent, counteracted the nullity of the will by Juxta- 
tabulation, Savigny, $ 892. 

After the introduction of the mancipatory will the fraud against 


^ 





222 DE RERUM UNIVERSITATIBUS. [1.$$123-137, 


the legislature would cease to be a motive for the rule requiring 
the testator to define a Universal succession; but the rule was 
retained in order to force the testator to have before his mind a 
clear and systematic view of his intentions by requiring their 
simultaneous expression in a single document. It secured the 
afterborn from oblivion and protected the son who was falsely 
supposed to be dead from the consequences of the testator’s error. 
At the latest period the use of Codicils permitted to a certain 
extent the partial and fragmentary disposition of a patrimony, 
but this was not extended to. the principal point, the heredum 
institutio. Ihering, § 53. 

§ 124, Justinian abolished this accretion and equalized the 
sexes, enacting that the pretermission of any suus heres or sua 
heres should absolutely vacate a will, and entitle to bonorum pos- 
gessio contra tabulas, like the pretermission of the son, Cod. 
6, 28, 4. 

§ 127. Justinian abolished this distinction and required that 
all sui heredes should be disinherited individually like the son. 
Thid. 

§ 180. Afterborn children (postumi), that is, children born after 
the making of a will, are uncertain persons, and by the general 
rule that uncertain persons cannot be instituted or disinherited 
(incerta persona heres institui non potest, Ulpian 22, 4), ought 
to be incapable of institution or disinheritance, and, therefore, if 
they are sui heredes, would necessarily invalidate a will, because 
every will is informal when there exists a suus heres who is 
neither instituted nor disinherited. If the suus heres was born 
in the lifetime of the testator, the revocation of the will would 
not be an irremediable evil, because the testator would still have 
jt in his power to make another will, and accordingly in this 
ease the civil law left the general rule to operate. But if the 
suus heres were born after the death of the testator, the evil 
would be irreparable, and the testator would die intestate. To 
prevent this, the civil law made an exception to the rule that 
an uncertain person cannot be instituted or disinherited, and 
permitted the institution or disinheritance of any suus heres who 
should be born after the death of the testator: and on the 
authority of the celebrated jurist Aquilius Gallus, the inventor 
of a form of acceptilation (8 $ 169), this power was extended to 
the institution or disinheritance of any afterborn grandchild of 


11. §§ 123-137.] POSTUMI SUI. 223 


the testator whose father should die in the interval between the 
making of the will and the death of the testator. Gallus Aqui- 
lius sic posse institui postumos nepotes induxit: Si filius meus 
vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis 
post mortem meam in decem mensibus proximis, quibus filius 
meus moreretur, natus nata erit, heredes sunto, Dig. 28, 2, 29, pr. 
‘Gallus Aquilius introduced the institution of afterborn grand- 
children in the following manner: If my son die in my lifetime, 
then let any grandson or granddaughter by him who may be 
born after my death within ten months after the death of my 
son, be my successor,” Such grandchildren are called Postumi 
Aquiliani. 

In respect of the suus heres born after the making of the will 
but in the lifetime of the testator, the case which the civil law 
left to the operation of the general rule, it might certainly be 
sometimes possible to make a new will after his birth, but it might 
sometimes be impossible or highly inconvenient, and accordingly 
the lex Junia Velleia passed A.p. 10, at the close of the reign of 
Augustus, in its first chapter permitted such children also of the 
testator, and also grandchildren of the testator born after their 
father's death in the lifetime of their grandfather, to be insti- 
tuted or disinherited. Such children and grandchildren were 
called Postumi Velleiani primi capitis. In its second chapter it 
permitted the institution or disinheritance of another class of un- 
certain persons, viz. quasi-afterborn children (postumorum loco) ; 
grandchildren, for instance, who were born before the making of 
the will but whose acquisition of the character of sui heredes 
by the decease of their father is subsequent to the making of 
the will. | 

Sueh grandchildren are called Postumi Velleiani secundi capitis. 

Besides the Postumj Aquiliani, the Postumi Velleiani primi 
capitis and the Postumi Velleiani secundi capitis, the jurist Salvius 
Julianus who systematized the Edict established the validity of 
the institution or disinheritance of a fourth class, intermediate 
between the Postumi Velleiani of the first and second chapter: 
grandchildren, namely, who like the Velleiani of the first chapter 
were born after the making of the grandfather's will, but who 
like those. of the second chapter were born before the death of 
their father. Such grandchildren are not sui heredes to their 
grandfather at their birth, but only by succession, that is by the 





224 DE RERUM UNIVERSITATIBUS. [n.$$123-137. 


subsequent death of their father, like those of the second chapter, 
D. 28, 2, 29, 15. 

The following is a conspectus of the different kinds of Postumi 
sui, le. descendants who after the making of a will come into 
the immediate power of a testator, whether (A) children or (B) 
grandchildren: to remoter descendants analogous principles will 
apply. 

(A) Children are either 

(a) Veritably afterborn, that is to say born after their father has 
made his will, whether after their father's decease, in which case 
the civil law treated them as certae personae, or in their father's 
lifetime, in which case they form a subdivision of Velleiani primi 
capitis : 

(6) Or quasi-afterborn (loco postumorum), i.e. quasi-sons or 
quasi-daughters by adrogatio, adoptio, legitimatio, in manum 
conventio. 

(c) Another quasi-afterborn is the child who falls under the 
immediate power of his soldier father, that is, becomes his suus 
heres, in consequence of the death of his grandfather, in whose 
power he previously was, after his father has made a soldier's 
will. D. 28, 2, 28, 1. 

(B) Afterborn grandchildren who, as self-successors to their 
grandfather, require institution or disinheritance in his will fall 
into four classes, differentiated by the order of priority in which 
certain events occur, as hereunder indicated : 


PosrUMI ÁQUILIANI, 

Will of grandfather: Death of father: Death of grandfather: 
Birth of grandchild. 

. PosruuI VELLEIANI Primi Capitis, 

Will of grandfather: Death of father: Birth of grandchild : 
Death of grandfather. 

Postumi SALviANI, 

Will of grandfather: Birth of grandchild: Death of father: 
Death of grandfather. 

Postumi VELLEIANI SECUNDI CAPITIS, 


Birth of grandchild: Will of grandfather: Death of father: 
Death of grandfather. 


The two last cases depend on the principle of successio. "The 


1. § 123-137.) CONTRA-TABULAR POSSESSION. 225 


grandchild is at birth in the power of his grandfather, but is 
not his suus heres, so long as there is an intervening ascendant— 
the father—in the same power. On the death of the intervening 
ascendant the grandchild is said to succeed to his place, and be- 
comes by such succession suus heres to his grandfather. Van- 
gerow, § 468. 

The afterborn stranger, though incapable at civil law of being 
appointed heir (§ 242), was relieved by the praetor who gave him 
the juxta-tabular possession. Justinian allowed him to take the 
legal estate, Inst. 3, 9, pr. 

§ 182. To the necessity of leaving some legacy to the dis- 
inherited afterborn sua heres (and not, as Blackstone suggests, 
to the querela inofficiosi) we must attribute the vulgar error in 
England of the necessity of leaving the heir one shilling in 
order to cut him off effectually. The querela inofficiosi was not 
barred by any legacy, however slight, being left to the heir, 
but only by giving him one fourth of his intestate portion. 
(For the changes which Justinian made in the law on this 
subject see Inst. 2, 18, 1. 2. Novella. 18, 1.) It seems that even 
8 legacy left to an afterborn sua heres might be unavailing to 
save the will from avoidance, unless it amounted to one fourth 
of her share by descent. If no legacy at all were left, the will 
would be informal from want of proper disinheritance of the sua 
heres, and absolutely void; if less than a fourth of her share 
were left, the will would not be absolutely void but voidable, i. e. 
lable to be overthrown if the aggrieved party chose to impeach 
it as inofficiosum. 

$135a. The Praeteritio of a descendant who is suus heres to 
the testator or, but for emancipation, would be suus heres, en- 
titles the descendant to contra-tabular possession. If the praeteritus 
is suus heres, the will is absolutely void and contra-tabular posses- 
sion is an intestate succession: but if the praeteritus is emanci- 
pastus, the effect of contra-tabular possession is to divide the 
inheritance between the praeteritus and other descendants who 
were instituted successors, excluding both instituted strangers and 
disinherited descendants. 

Contra-tabular possession might be claimed either by the prae- 
tentus himself, or by any of the instituted descendants. For if an 
instituted heir took less by his institution than he would by this 
partial intestacy, it would be his interest to claim contra-tabular 

Q 





226 DE RERUM UNIVERSITATIBUS. [n.$$123-137. 


possession, commisso. per alium edicto, ‘the edict having been 
made applicable by another,’ i.e. by the pretermission of another 
descendant. 

'The portions of the will that remained in force were: 

(1) The exheredations:. for such of the liberi as were duly 
disinherited continued, as was mentioned, excluded from the in- 
heritance :. 

(2) The pupillary substitutions, the nature of which will here- 
after, $ 179, be explained : 

(3) Legacies given to certain conjunctae personae, e. g. legacies 
to ascendants or descendants of the testator, or a bequest to the 
wife of the dower which she had brought to her husband. If, 
instead of making the conjuncta persona a legatee, the testator had 
given. his bounty in the form of a portion of the succession in which 
the conjuncta persona was instituted successor, such institution con- 
tinued valid. The validity, however, of such legacies and institutions 
was by a constitution of Antoninus Pius, D. 87, 5, 7, 8 pr. (possibly 
the same as the rescript mentioned by Gaius § 120, $ 126 4) 
subjected to this limitation, that all the conjunctae personae to- 
gether could not take more than a virilis portio, i. e. as much as 
fell to the lot of the contra-tabulant or claimant of contra-tabular 
possession ; with this further proviso, that any conjuncta persona 
who is instituted heir in a portion of the heritage may retain as 
much thereof as he would have obtained by elaiming contra-tabular 
possession. 

The partial intestacy produced by contra-tabular possession shows 
that the rule which we have already quoted: nemo pro parte tes- 
tatus pro parte intestatus decedere potest: must be taken with 
some reservation. Although a testator cannot voluntarily dispose 
of only part of his heritage, such partial disposition may be intro- 
duced against the testator's intention by the operation of law. The 
significance of the rule is principally this: that if a testator only 
names a successor for a certain fraction of the heritage : or if the 
fraction devised to one of several successors lapses by his decease 
before the testator’s death, the undevised or lapsed portion does not 
devolve, as it would in English law, to the heirs-at-law or persons 
entitled by intestacy, but goes by accrual (accretio) to the devisee 
or devisees of the remainder of the heritage. 


u.§§ 138-146.] Q. M. TESTAMENTA INFIRMENTUR. 


227 


QUIBUS MODIS TESTAMENTA INFIRMENTUR. 


$ 138. Siquis post factum testa- 
mentum adoptauerit sibi filium aut 
pr populum eum qui sui iuris est, 
aut per praetorem eum qui in po- 
testate parentis fuerit, omni modo 
testamentum eius rumpitur quasi 
agnatione sui heredis. 

$ 139. Idem iuris est, si cui post 
factum testamentum uxor inmanum 
conueniat, uel quae in manu fuit 
nubat ; nam eo modo filiae loco 
esse incipit et quasi sua. 


$140. Nec prodest, siue haec 
siue ille qui adoptatus est, in eo 
testamento sit institutus institu- 
taue; nam de exheredatione eius 
superuacuum uidetur quaerere, cum 
testamenti faciendi tempore suorum 
heredum numero non fuerit. 

$ 141. Filius quoque qui ex prima 
secundaue mancipatione manumit- 
titur, quia reuertitur in potestatem 
patriam, rumpit ante factum testa- 
mentum ; nec prodest, (st) in eo 
testamento heres institutus uel ex- 
heredatus fuerit. 

$142. Simile ius olim fuit in 
eius persona cuius nomine ex sena- 
tusconsulto erroris causa probatur, 
quia forte ex peregrina uel Latina 
quae per errorem quasi ciuis Ro- 
mana uxor ducta esset, natus esset ; 
nam siue heres institutus esset a 
parente siue exheredatus, siue uiuo 
patre causa probata siue post mor- 
tem eius, omni modo quasi agna- 
tione rumpebat testamentum. 


$143. Nunc uero ex nouo sena- 
tusconsulto quod auctore diuo Had- 
rino factum est, siquidem uiuo 
petre causa probatur, aeque ut olim 
omni modo rumpit testamentum; 
si uero post mortem patris, prae- 
teritus quidem rumpit testamen- 


$ 138. If after making his will a 
man adopts as son either a pater- 
familias by a lex curiata or a filius- 
familias by mancipation and ficti- 
tious vindication, his will is inevit- 
ably vacated as it would be by the 
subsequent birth of a self-successor. 

$ 139. The same happens if after 
making his will the testator receives 
a wife into his hand, or marries a 
person who is in his hand, as she 
thereby acquires the rights of a 
daughter and becomes his self-suc- 
cessor. 

§ 140. And it is unavailing that 
such a wife or adopted son was in 
that will appointed heir, for not 
having been self-successors when 
the will was made they clearly 
cannot have been therein disin- 
herited. 

§ 141. So a son, manumitted 
after the first or second sale reverts 
into the power of his father and 
vacates a previous will, nor does 
it avail that he is therein appointed 
heir or disinherited. 


$ 142. The same.rule formerly 
held of the son in whose behalf the 
decree of the genate allows proof of 
error, if he was born of an alien 
or Latin mother who was married 
in the mistaken belief that she was 
a Roman [see 1 $ 67]: for whether 
he was appointed heir by his father 
or disinherited, and whether the 
error was proved in his father's life 
or after his death, in every case the 
will was avoided as by the subse- 
quent birth of a self-successor. 

$143. Now, however, by a re- 
cent decree of the senate, made on 
the proposition of the late emperor 
Hadrian, if the father is alive when 
the error is proved, the old rule 
obtains and the willis in every case 
avoided; but when the error is 


Q 2 


228 


tum, si uero heres in eo scriptus 
est uel exheredatus, non rumpit 
testamentum ; ne scilicet diligenter 
facta testamenta rescinderentur eo 
tempore quo renouari non possent. 


§ 144. Posteriore quoque testa- 
mento quod iurefactum est, superius 
rumpitur. nec interest, an exti- 
terit aliquis ex eo heres, an non 
extiterit; hoc enim solum specta- 
tur, an existere potuerit. ideoque 
si quis ex posteriore testamento 
quod iure factum est, aut noluerit 
heres esse, aut uiuo testatore, aut 
post mortem eius, antequam here- 
ditatem adiret, decesserit, aut per 
eretionem exclusus fuerit, aut con- 
dicione sub qua heres institutus est 
defectus sit, aut propter caeliba- 
tum ex lege Zulia summotus fuerit 
ab hereditate : quibus casibus pater 
familias intestatus moritur, nam et 
prius testamentum non ualet, rup- 
tum 28 posteriore, et posterius 
aeque nullas uires habet, cum ex 
eo nemo heres extiterit. 

$ 145. Alio quoque modo testa- 
menta iure facta infirmantur uelut? 
(cum) is qui fecerit testamentum, 
capite deminutus sit; quod quibus 
modis accidat, primo commentario 
relatum est. 

$146. Hoc autem casu inrita 
fieri testamenta dicemus, cum alio- 
quin et quae rumpuntwr, inrita 
fiant, (et quae statim ab initio non 
iure fiunt, inrita sint; sed et ea 
quae ture facta sunt et postea prop- 
ter capitis deminutionem | inrita 
Jíunt,) possunt nihilo minus rupta 
dici. sed quia sane commodius 
erat singulas causas singulis appel- 
lationibus distingui, ideo quaedam 
non iure fieri dicuntur, quaedam 
iure facta rumpi uel inrita fieri. 


DE RERUM UNIVEBSITATIBUS. [n.$$138-146. 


proved after the father's death, if 
the son was passed over in silence, 
the wil is vacated; but if he was 
appointed heir or disinherited the 
will is valid; so that carefully ex- 
ecuted wills shall not be rescinded 
at a period when re-execution is im- 
possible. 

§ 144. A subsequent will duly exe- 
cuted is a revocation of a prior will, 
and it makes no difference whether 
& successor ever actually takes under 
it or no; the only question is, 
whether one might. Accordingly, 
whether the successor instituted in 
& subsequent will duly executed 
declines to be successor, or dies in 
the lifetime of the testator, or after 
his death before accepting the suc- 
cession, or is excluded by expira- 
tion of the time allowed for delibe- 
ration, or by failure of the condition 
under which he was instituted, or 
by celibacy as the lex Julia pro- 
vides ; in allthese cases the testator 
dies intestate, for the earlier will is 
revoked by the later one, and the 
later one is inoperative, as it creates 
no actual successor. 

§ 145. There is another event 
whereby a will duly executed may 
be invalidated, namely, the testator's 
undergoing a loss of status: how 
this may happen was explained in 
the preceding book. 

$ 146. In this case the will may 
be said to be null; for although 
both those that are rescinded and 
those that are not duly executed 
may be said to be null, and those 
that are duly executed but subse- 
quently annulled by loss of status 
may be said to be vacated, yet asit 
is convenient that different grounds 
of invalidity should have different 
names to distinguish them, we will 
say that some wills are unduly exe- 
cuted, others duly executed but 
subsequently vacated or subse- 
quently annulled. 


11. §§ 147-151.] BON. POSS. SECUNDUM TABULAS. 229 


§ 188. The innovations of Justinian changed the effects of 
adoption. Under his enactment, if a child is adopted by an 
ascendant the old rules obtain; but a person adopted by a 
stranger only acquires rights in the adoptive family in case of 
the adopter’s intestacy, and therefore need not be instituted or 
disinherited by the adopter; he retains, however, his rights in 
his natural family, and therefore must be instituted or disin- 
hernted in the will of his natural parent. 1 § 97-107 Comm. 

§ 139. By English law the only circumstance by which a will 
is avoided (besides revocation, cancellation, execution of a later 
will) is the marriage of the testator, and this operates universally, 
irrespectively of the birth of children. 

$140. This was reversed before the time of Justinian, for we 
find in D. 28, 3, 18 that the institution of the future adoptive 
son saves a will from being ruptured by adoption. Indeed, con- 
sidering that the object of the lex Velleia was to save wills from 
rupture, we may be surprised that the extension of its provisions - 
from the natural postumi to the artificial postumi or quasi postumi 
had not been established in the days of Gaius. 


BONORUM POSSESSIO SECUNDUM TABULAS. 


§ 147. Non tamen per omnia 
inutilia sunt ea testamenta quae 
ue] ab initio non iure facta sunt uel 
iure facta postea inrita facta aut 
rupta sunt. nam si septem testium 
signis signata sint testamenta, po- 
test scriptus heres secundum tabu- 
las bonorum possessionem petere, 
si modo defunctus testator et ciuis 
Romanus et suae potestatis mortis 
tempore fuerit. nam si ideo inri- 
tum factum sit testamentum, quod 
puta ciuitatem uel etiam libertatem 
testator amisit, aut ts in adoptio- 
nem se dedit (et) mortis tempore 
in adoptiui petris potestate fuit, 
non potest scriptus heres secundum 
tabulas bonorum possessionem pe- 
tere. 

$ 148. (Jtaque qui) secundum 
tabulas testamenti quae aut statim 
sb initio non iure factae sint, aut 


$147. Wills are not altogether 
inoperative either when originally 
informal or when at first valid and 
subsequently vacated or annulled ; 
for if the seals of seven witnesses 
are attached, the testamentary heir 
is entitled to demand juxta-tabular 
possession, or possession in accord- 
ance with the will, if the testator 
was a citizen of Rome and in his 
own power at the time of his death ; 
but if the cause of nullity was, say, 
the testator's loss of citizenship, 
or loss of liberty, or adoption and 
he dies [an alien or slave or] subject 
to his adoptive father’s power, the 
devisee is barred from demanding 
the juxta-tabular possession. 


§ 148. Juxta-tabular possession 
according to a will either originally 


irregular or originally regular and 


230 


iure factae postea ruptae uel inri- 
tae erunt, bonorum possessionem 
accipiunt, si modo possunt heredi- 
tatem optinere, habebunt bonorum 
possessionem cum re; si uero ab 
‘tis auocari hereditas potest, habe- 
bunt bonorum possessionem sine 
re. 

$149. Nam ai quis heres iure 
ciuili institutus sit uel ex primo 
‘uel ex posteriore testamento, uel ab 
intestato iure legitimo heres git, is 
potest ab tis hereditatem awocare ; 
si uero nemo sit alius iure ciuili 
heres, ipsi retinere hereditatem pos- 
sunt, nec ullum ius aduersus eos 
habent cognati, qui legitimo iure 
deficiuntur. 


$ 149 a. Aliquando tamen, sicut 
supra quoque notauimus, etiam 
legitimis heredibus | potiores scripti 
habentur, ueluti si ideo non iure | 
factum sit testamentum, quod fa- 
milia non uenierit, aut nun|cupa- 
tionis uerba testator locutus non 
git ; | agnati petant here- 
ditatem——_——_| ex constitutione 








$ 150. | ueri lege 
Iulia | possessores ela 
lege bona caduca fiunt et ad popu- 
lum deferri | iubentur, si defuncto 
nemo ; 

















$ 151. |Potest ut iure facta testa- 
menta contraria woluntate | infir- 
mentur. apparet (autem) non 
posse ex eo solo infirmalri testamen- 
tum, quod postea testator id nol- 
uerit ualere, usque adeo, ut si 
linum eius inciderit, nihilo minus 
iure ciuili ualeat. quin etiam si 
deleuerit quoque au£ conbusserit ta- 
bulas testamenti, miizlo minus 
(non) desinent ualere quae ibi 
fuerunt scripta, licet eorum pro- 
batio difficilis sit. 


DE RERUM UNIVERSITATIBUS. [1 §§ 147-151. 


subsequently vacated or annulled, 
if tenable without molestation, is 
effective; if defeasible by an ad- 
verse claimant, is ineffective [see 
3 $ 36]. 


$ 149. For a successor duly ap- 
pointed by an earlier or later will, 
or & statutory successor by intes- 
tacy, can evict the juxta-tabular 

ossessor from the inheritance 
[ee however, § 120]; but in de- 
ault of such claim on the part of 
& civil successor, the juxta-tabular 
successor can retain the inherit- 
ance, arid cannot be deprived of it 
by cognates, these having no civil 
title. 

§ 149 a. Sometimes, however, a 
successor with a civil title is post- 
poned to an irregularly appointed 
Successor; for instance, if the irre- 
gularity was only the absence of 
mancipation or nuncupatory publi- 
cation, since if the agnates of the 
deceased claim the inheritance, they 
may be repelled by the plea of fraud, 
&ccording to the constitution of the 
Emperor Antoninus. 

$ 150. Juxta-tabular succession 
is not defeated by the lex Julia, 
under which law a condition of 
caducity or devolution to the fiscus 
is the absence of every kind of suc- 
cessor. 

$151. A validly executed will 
may be invalidated by revocation : 
but a will is not invalidated by the 
mere intention of revocation. And 
consequently, in spite of the testa- 
tor's cutting the strings by which it 
is tied, it nevertheless, at civil law, 
continues valid: and his erasure or 
burning of the dispositions does 
not render them invalid, though it 
makes them difficult of proof. 


11$$147-151.] BON. POSS, SECUNDUM TABULAS. 


$151 a. Quid ergo est? si quis 
ab intestato bonorum possessionem 
petierit et is | qui ex eo testamento 
heresest, petat hereditatem, 
perueniat hereditas ; 
et hoc ita rescripto imperatoris 
Antonini significatur. 











231 


$ 151 a. What then is the result ? 
If a claimant demand bonorum pos- 
Sessio by intestacy, and a devisee 
demand the civil inheritance under 
the will, the latter is repelled by the 
plea of fraud : and if no one should 
demand bonorum possessio by title 


of intestacy, the devisee is super- 
seded by the fiscus as unworthy 
of the succession in order to carry 
the testator’s intention of ex- 
cluding him into effect: and this 
was enacted by a rescript of Marcus 
Aurelius Antoninus. 


§ 147. The validity of a testament implies, strictly speaking, the 
continuance of a testator’s intention, and therefore of his capacity 
of intention (testamentifactio), from its first declaration to the 
moment of his death. Accordingly an intermediate capitis diminutio 
made the will invalid (irritum) at civil law. The praetor, however, 
only looked at the first and last moments, and, if at these periods 
the testator had testamentifactio, sustained his intentiohs by grant- 
ing juxta-tabular possession. 

So at civil law a will was broken (ruptum) by after-birth 
(agnatio) of a self successor, $ 138; but if he died before the 
testator, the praetor sustained the will by granting juxta-tabular 
succession to the heres scriptus. Postumus praeteritus, vivo testa- 
tore natus, decessit. Licet juris scrupulositate nimiaque subtilitate 
testamentum ruptum videatur, attamen si sighatum fuerit testamen- 
tum, bonorum possessionem secundum tabulas accipere heres scriptus 
poterit, remque obtinebit, ut et divus Hadrianus et Imperator 
noster rescripserunt, D. 28, 8, 12, pr. In order that juxta-tabular 
suecession, granted when a will had been avoided (irritum) by inter- 
vening loss of capacity, might be efficacious (cum re), i.e. not 
defeasible by the claimant entitled at civil law by intestacy, it was 
necessary that the testator on reacquiring capacity should confirm 
his will by a codicil, D. 37, 11, 11, 2. 

§ 148. There was no ipso jure, or necessarius, bonorum possessor, 
corresponding to the heres necessarius, § 152, with whom delatio 
and acquisitio hereditatis were coincident: all bonorum possessores 
corresponded to the other class of heres, the heres extraneus or 
voluntarius, with whom acquisitio was distinct from delatio here- 
ditatis, and required a voluntary act (aditio), That is to say, 











232 DE RERUM UNIVERSITATIBUS. [n.$$147-151. 


the person called (vocatus) by the praetorian edict to the succession 
forfeited his right to succeed unless he made his claim (agnitio, 
petitio, admissio, bonorum possessionis), within a certain period, 
usually 100 dies utiles from the date of the vocatio (delatio). On 
the claim being made, the grant (datio) of bonorum possessio 
followed as a matter of course without any judicial investigation 
(causae cognitio. It was a mere formality, a certificate of the 
magistrate, the praetor or praeses provinciae, that the agnitio 
had been made within the allotted period, before the expiration of 
the term allowed for deliberation. If any real controversy arose, 
it was decided by one of two actions, hereditatis petitio, or the 
Interdict Quorum bonorum. If the claimant relied on his title 
at civil law, he sued by hereditatis petitio; if he relied on the 
title given him by the praetorian edict, he sued by the Interdict 
Quorum bonorum. See 4 § 144. If defeated in either of these 
proceedings, he gained nothing by having obtained the formal 
grant of praetorian succession—he had only bonorum possessio 
sine re. 

§ 150. Onginally when a heritage was vacant from the failure 
of intestate successors, Ulpian 28, 7, or from the neglect of a devisee 
to. take possession, § 52, any stranger might take possession and 
acquire by usucapio, but this right was abolished by Sc. Juven- 
tianum. The lex Julia de Maritandis ordinibus, which is the 
statute here mentioned, was passed a.p. 4; for an account of ite 
purport and of the meaning of the term caduca see § 190 and § 206 
comm. Besides its nghts to caduca under this statute the state 
could claim all inheritances left without an heir (bona vacantia). 
The state did not become necessary successor (ipso jure) but had the 
delatio(ad populum deferri jubentur),i.e. had the right of deliberation 
and acceptance or repudiation, Inst. 83, 11,1. As universal suc- 
cessor the state could by the terms of Sc. Juventianum recover 
from the unentitled occupant by Hereditatis petitio, D. 5, 3, 20, 7, 
and could transfer its rights to a purchaser by Sc. Trebellianum, 
ibid. 54, pr. 

The Fiscus was bound to pay all codicillary legacies and trusts : 
and succeeded to all the obligations active and passive, in other 
words, to all the personal rights and personal duties, of the 
heritage-leaver: but like other successors might, by taking ad- 
vantage of the Benefice of inventory, confine its liability to the 
extent of the assets. In the event of the repudiation of the suc- 


1.6147-151.] EREPTION FOR INDIGNITY. 238 


cession by the Fiscus, the goods were sold for the benefit of creditors. 
Vangerow, § 564. 

Escheat (derived from exciduta, the medieval participle of ex- 
cidere) is etymologically the same word as caducum and denotes to 
a certain extent a similar destination of property. 

By English law, if a man dies intestate, and without kindred, : 
the devolution of his property follows different rules according 
as it is real or personal. By feudal law, if a vassal holding a 
transmissible feud died without heirs, his feud escheated or re- 
verted to the lord. So in England if a tenant in fee die with- 
out leaving lawful heirs, his land escheats to the lord of the fee. 
But the personal property of a man who dies intestate and without 
kindred, goes to the crown, subject always to the widow’s right to a 
moiety in case she survive. 

Gaius here means that although a grant of bonorum possessio 
might be rendered ineffective (sine re) in consequence of the superior 
claims of à person with a civil title by whom the possessor could 
be evicted, the fiscus had no title to an inheritance under the lex 
Julia, if the deceased, though without a civil successor, had left a 
bonorum possessor. 

§ 151 a. Ereption for indignitas, an institution which survived in 
the legislation of Justinian, D. 84, 9, C. 6, 35, must be distinguished 
from the lapse of a devise under the lex Julia (caducum). In the 
latter case there was want of capacitas, as opposed to want of testa- 
mentifactio passiva, on the part of honoratus. In the case of the 
mndignus there was not even incapacitas but only lability to 
deprivation. Some grounds of Ereption were common to the heir 
and legatee, others peculiar to the heir, others peculiar to the legatee. 
The forfeiture of the inheritance or legacy was sometimes in favour 
of the Fiscus, sometimes in favour of other persons, usually of 
those who would have taken but for the disposition in favour of 

indignus. 

Instances of grounds for which either heir or legatee forfeited 
their interest to the Fiscus were: a secret unlawful trust, coercion 
of the testator in respect of his will, neglect to avenge the 
death of the testator, a suit denying the status of the testator, 
impeachment of the will for inofficiositas, demand of contra-tabular 
possession, &e. 

Grounds for which their shares were forfeited to other persons 
than the Fiscus were: refusal of the office of guardian when the 


234 DE RERUM UNIVERSITATIBUS. [n.$$147-151. 


prospect of the discharge of this duty was the motive of the 
testator's bounty, refusal to undertake the education of an infant 
child of the testator, neglect of the testator’s burial, &c. 

Grounds on which the heir alone forfeited the whole or part of 
his inheritance to the Fiscus were: concealment of a portion of the 
hereditaments in order to defraud a legatee (whereupon the heir 
forfeited the fourth which he was entitled to retain from such 
legacy by the lex Falcidia), the discovery that though putative son 
he was not a genuine son of the testator, the deliberate cancella- 
tion of his name by the testator, the imperfect execution of a 
subsequent will in which he was excluded from the heritage, a 
codicillary declaration of his unworthiness to inherit, &c. 

Grounds on which an heir forfeited his portion to persous other 
than the Fiscus were: neglect on the part of a mother to demand 
a guardian for her infant child, a second marriage by a mother 
who herself is guardian before she has caused another guardian to 
be substituted, neglect of a lunatic testator, neglect to ransom the 
testator, criminal prosecution of testator, &c. 

Grounds exclusively affecting a legatee and that in favour of 
the successor are theft from the heritage and concealment of the 
testator's will. 

One of the grounds of Ereption we have seen to be the 
imperfect Rupture of a will. The Rupture (ruptio) of a will was 
produced by two circumstances: (1) Agnatio postumi, the sub- 
sequent birth of a self-successor, or the coming into existence of 
a quasi postumus, $ 189: and (2) Revocation. On the principle, 
Nihil tam naturale est quam eo genere quidque dissolvere quo 
colligatum est (3 § 174), the most formal Revocation of a will 
would be the execution of a subsequent will. Another mode of 
Revocation sanctioned by Justinian depended on two conditions : 
a, declaration attested by three witnesses or made in the form of a 
record or protocol deposited in the archives of a court, and the 
expiration of ten years from the date of the execution of the will, 
C. 6, 28, 27. 

The mere cancellation or obliteration of a will was an informal 
Revocation and left the will valid at civil law: the devisee, how- 
ever, was not allowed to take the inheritance against this evidence 
of the testator’s change of intention, but forfeited the succession as 
indignus. The rescript of Marcus Aurelius to this effect, to which 
Gaius alludes, is preserved in the Digest, 28, 4, 8. The forfeiture 


1. §§ 152-173. ] 


DE HEREDUM QUALITATE. 


235 


was in favour of the Fiscus: but only after failure of the persons 


entitled by intestacy. 


Justinian ordained that a will should be perfectly Revoked and 
completely avoided by the cutting of the cords, or removal of the 
seals, or other intentional destruction of the outward signs of its 
due solemnization, C. 6, 23, 80. Vangerow, § 565. 


DE HEREDUM QUALITATE ET DIFFERENTIA. 


$152. Heredes autem aut neces- 
ear dicuntur aut sui et necessarii 
aut extranei. 

$153. Necessarius heres est ser- 
wus cum libertate heres institutus, 
ideo sic appellatus, quia siue uelit 
siue nolit, omni modo post mortem 
testatoris protinus liber et heres est. 


$154. Vnde qui facultates suas 
suspectas habet, solet seruum suum 
primo aut secundo uel etiam ulteri- 
ore gradu liberum et heredem insti- 
tuere, ut si creditoribus satis non 
fiat, potius huius heredis quam 
ipsrus testatoris bona ueneant, id 
est ut ignominia quae accidit ex 
uendiione bonorum, hunc potius 
heredem quam ipsum testatorem 
contingat ; quamquam apud Fu- 
fidium Sabino placeat eximendum 
eum esse ignominia, quia non suo 
uitio sed necessitate iuris bonorum 
uenditionem pateretur; sed alio 
iure utimur. 


$ 155. Pro hoc tamen incommodo 
illud ei commodum praestatur, ut 
ea quae post mortem patroni Bibi 
adquisierit, siue ante bonorum uen- 
ditionem siue postea, ipsi reseruen- 
tur; et quamuis pro portione bona 
uenierint, iterum ex hereditaria 
causa bona eius non uenient, nisi si 
quid ei ex hereditaria causa fuerit 
adquisitum, uelut si Latinus ad- 
quisierit, locupletior factus sit ; 
cum ceterorum hominum, quorum 
bona uenierint pro portione, si quid 


§ 152. Successors are necessary, 
self-successors and necessary, or 
external. 

§ 153. A necessary successor is a 
slave enfranchised and instituted 
heir, so called because, willing or 
unwilling, without any alternative, 
on the death of the testator he im- 
mediately has his freedom and the 
succession. 

$ 154. For when a man’s affairs 
are embarrassed, itis common for his 
slave, either in the first place or as 
a substitute in the second or any 
inferior place, to be enfranchised 
and appointed heir, so that, if the 
creditors are not paid in full, this 
heir is insolvent instead of the 
testator, and the ignominy of in- 
solvency attaches to the heir in- 
stead of the testator; though, as 
Fufidius relates, Sabinus held that 
he ought to be exempted from 
ignominy, as it is not his own 
fault, but legal compulsion, that 
makes him insolvent; this, how- 
ever, is not the law. 

§ 155. To compensate this dis- 
advantage he has the advantage 
that his acquisitions after the death 
of his patron, and whether before 
or after the sale, are for his own 
benefit, and although a portion 
only of the debts is satisfied by the 
sale, he is not liable to 4 second 
sale of his after-acquired property 
for the debts of the testator, unless 
he gain anything as heir, if he in- 
herit, for instance, the property of 
a Latinus Junianus, another freed- 





236 


postea adquirant, etiam saepius 
eorum bona uenire solent. 


$156. Sui autem et necessarii 
heredes sunt uelut filius filiaue, 
nepos neptisue ex filio, (e£) dein- 
ceps ceteri qui modo in potestate 
morientis fuerunt. sed uti nepos 
neptisue suus heres sit, non sufficit 
eum in potestate aui mortis tem- 
pore fuisse, sed opus est ut pater 
quoque eius uiuo patre suo desierit 
suus heres esse aut morte intercep- 
tus aut qualibet ratione liberatus 
potestate ; tum enim nepos neptisue 
in locum sui patris succedunt. 


$157. Bed sui quidem heredes 
ideo appellantur, quia domestici 
heredes sunt et uiuo quoque parente 
quodammodo domini existimantur ; 
unde etiam si quis intestatus mor- 
tuus sit, prima causa est in succes- 
sione liberorum. necessarii uero 
ideo dicuntur, quia omni modo, 
(siue) uelint siue (nolint, tam) ab 
intestato quam ex testamento here- 
des fiunt. 


$ 158. Sed his praetor permittit 
abstinere se ab heredi£ate, ut potius 
parentis bona ueneant. 


$159. Idem iuris est et (in) 
uxoris persona quae in manu est, 
quia filiae loco est, et in nuru quae 
in manu fili est, quia neptis loco 
est. 


$160. Quin etiam similiter ab- 
stinendi potestatem facit praetor 
etiam ei qui in causa mancipti est, 
(st) cum libertate heres institutus 
Bit, quamuis necessarius, non etiam 


DE RERUM UNIVERSITATIBUS. [m.$$152-173. 


man of the testator; whereas other 
persons, who only pay a dividend, 
on subsequently acquiring any pro- 
perty, are liable to repeated sales. 

. $156. Self-successors and neces- 
sary are such as a son or daughter, 
a grandson or granddaughter by the 
son, and further similar lineal de- 
scendants, provided that they are 
under the power of the ancestor 
when he dies. Tomakea grandson 
or granddaughter self-successor it 
is, however, not sufficient that they 
were in the power of the grand- 
father at the time of his death, but it 
is further requisite that their father 
in the life of the grandfather shall 
have ceased to be self-successor, 
whether by death or by any other 
mode of liberation from parental 
power, as the grandson and grand- 
daughter then succeed to the place 
of the father. 

§ 157. They are called self-suc- 
cessors because they are members 
of the family, and even in the life- 
time of the parent are deemed 
to a certain extent co-proprietors ; 
wherefore in intestacy the first right, 
of succession belongs to the chil- 
dren. They are called necessary, 
because they have no alternative, 
but, willing or unwilling, both in 
testacy and intestacy, they become 
successors. 

§ 158. The praetor, however, 
permits them to abstain from the 
succession, and leave the ancestor 
to be declared insolvent. 

§ 159. The same rule governs a 
wife in the hand of a husband, for 
she is on the footing of a daughter, 
and a son's wife in the hand of the 
Bon, for she is on the footing of a 
granddaughter. 

$ 160. A similar power of absten - 
tion is granted by the praetor to & 
person held in mancipation when 
enfranchised and made successor, 
although he is a necessary successor 


m. §§ 152-173.] 
suus heres sit, tamquam seruus. 


$161. Ceteri qui testatoris iuri 
subiecti non sunt, extranei heredes 
sppellantur, itaque liberi quoque 
nostri qui in potestate nostra non 
sunt, heredes a nobis instituti [sicut | 
extranel uidentur. qua de causa 
et quia matre heredes instituuntur, 
eodem numero sunt, quia feminae 
liberos in potestste non habent. 
serui quoque, qui cum libertate 
beredes instituti sunt et postea a 
domino manumissi, eodem numero 
habentur. 

$ 162. Extraneis autem here- 
dibus deliberandi potestas data est 
de adeunda hereditate uel non ade- 
unda. 

$163. Sed siue is cui abstinendi 
potestas est, inmiscuerit se bonis 
bereditartis, siue is cui de adeunda 
(hereditate) deliberare licet, adierit, 
postes reliquendae hereditatis facul- 
tetem non habet, nisi si minor sit 
annorum XXV. nam huius setatis 
hominibus, sicut in ceteris omnibus 
causis deceptis, ita etiam si temere 
damnosam hereditatem susceperint, 
praetor succurrit. scio quidem 
diuum Hadrianum etiam maiori 
IXY annorum ueniam dedisse, cum 
post aditam hereditatem grande 
aes alienum quod aditae here- 
ditatis tempore latebat, apparuis- 
get. 


$ 164. Extraneis heredibus solet 
cretio dari, id est finis deliberandi, 
ut intra certum tempus uel adeant 
hereditatem, uel si non adeant, 
temporis fine summoueantur. ideo 
autem cretio appellata est, quia 
cernere est quasi decernere et con- 
stituere. 


$165. Cum ergo ita scriptum sit 
HERES TITIVS ESTO, adicere debe- 
mus CERNITOQVE IN CENTVM DIEBYS 


DE HEREDUM QUALITATE. 237 


and not a self-successor, mancipation 
being assimilated to servitude. 

§ 161. Those who were not sub- 
ject to the testator’s power are called 
strangers, or external successors. 
Thus children not in our power, if 
instituted successors, are deemed 
strangers; and children instituted 
by their mother belong to this class, 
because women are not invested 
with power over their children. 
Slaves instituted heirs with freedom 
annexed, and subsequently manu- 


mitted, belong to the same class. 


$ 162. External or voluntary 
successors have the right of delibe- 
rating whether they will accept or 
disclaim a succession. 

$163. But if a person who has 


the power of abstention interferes’ 


with the succession, or a person 
who has the power of deliberation 
accepts, he has no longer the power 
of relinquishing the inheritance, 
unless he is a minor under twenty- 
five years of age; for minors, both 
when they take any other inju- 
dicious step, and when they in- 
cautiously accept a disadvantageous 
inheritance, obtain relief from the 


praetor. The late Emperor Ha- 


drian even relieved & person who 
had attained his majority, when, 
after his acceptance of a succession, 
a great debt, unknown at the time 
of acceptance, had come to light. 

$ 164. External heirs are com- 
monly allowed an interval for de- 
cision, that is, a definite delay for 
deliberation, within which time 
they must formally accept, and in 
default of formal acceptunce are 
barred. It isa term for decision, 
because it is a term within which 
the heir must come to a determina- 
tion and resolution. 

§ 165. Accordingly, after the 
words, ‘ Titius, be thou my heir,’ 
we ought to add, ‘and formally 








238 


PROXIMIS QVIBVS SCIES POTERISQVE. 
QVODNI ITA CREVERIS, EXHERES 
ESTO, 


$ 166. Et qui ita heres institu- 
tus est, si uelit heres esse, debebit 
intra diem cretionis cernere, id est 
haec uerba dicere QVOD ME P. ME- 
VIVS TESTAMENTO SVO HEREDEM 
INSTITVIT, EAM HEREDITATEM ADEO 
CERNOQVE. quodsi ita non cre- 
uerit, finito tempore cretionis ex- 
cluditur; nec quicquam proficit, si 
pro herede gerat, id est si rebus 
hereditariis tamquam heres utatur. 


$167. At is qui sine cretione 
heres institutus sit, aut qui ab in- 
testato legitimo iure ad hereditatem 
uocatur, potest &ut cernendo aut 
pro herede gerendo uel etiam nuda 
uoluntate suscipiendae hereditatis 
heres fieri; eique liberum est quo- 
cumque tempore uoluerit, adire 
hereditatem ; (sed) solet praetor 
postulantibus hereditartis creditor- 
ibus tempus constituere, intra quod 
si ueltt adeat hereditatem, si minus, 
ut liceat creditoribus bona defuncti 
uendere. 


§ 168. Sicut autem (qui) cum 
cretione heres institutus est, nisi 
creuerit hereditatem, non fit heres, 
it& non aliter excluditur, quam si 
non creuerit intra id tempus quo 
cretio finita est; itaque licet ante 
diem cretionis constituerit heredi- 
tatem non adire, tamen paenitentia 
actus superante die cretionis cer- 
nendo heres esse potest. 

$169. Az és qui sine cretione 
heres institutus est, quiue ab intes- 
tato per legem uocatur, sicut uolun- 
tate nuda heres fit, ita et contraria 
destinatione statim ab hereditate 
repellitur, 


DE RERUM UNIVERSITATIBUS. [r.$$152-173. 


declare whether thou accept within 
& hundred days in which thou 
knowest of thy institution and hast 
power to declare; or in default of 
so declaring be thou disinherited.’ 

$166. And the successor thus 
appointed, if he wish to inherit, 
must within the term prescribed 
solemnly declare his decision in the 
following words: ‘Whereas Publius 
Mevius in his will has made me his 
successor, that succession I hereby 
accept and undertake. In default 
of such formal declaration, the 
elapsing of the period allowed shuts 
him out from the inheritance, and 
it is of no avail that he behave as 
Successor, that is, deal with the 
estate of the deceased as proprietor. 

$ 167. In the absence of a pre- 
scribed term for deliberation, and 
in intestate succession at civil law, 
a man takes the inheritance either 
by formal declaration, or by acts of 
ownership, or by informal declara- 
tion, and is not barred from ac- 
cepting by any lapse of time ; but 
it is usual for the praetor, at the 
demand of the creditors of the de- 
ceased, to appoint a period, on the 
expiration of which without his ac- 
ceptance the creditors are permitted 
to put up the estate of the deceased 
for sale. 

§ 168. When a term is prescribed 
for formally declaring, a man is 
barred by not declaring, but only 
by not declaring within the last 
day of the appointed term; and 
though, pending the term, he may 
have elected to disclaim, yet if he 
change his mind before the time is 
expired and formally declare his 
acceptance, he takes the estate. 

$ 169. If no term is prescribed 
in the institution, or if & man is 
entitled by intestacy at civil law, 
just as an informal declaration 
makes him heir, so the contrary 
declaration immediately bars him 
from the succession, 


3r. §§ 152-173.] 


§ 170. Omnis autem cretio certo 
tempore constringitur. in quam 
rem tolerabile tempus uisum est 
centum dierum. potest tamen 
nihilo minus iure ciuili aut longius 
aut breuius tempus dari; longius 
tamen interdum praetor coartat. 


$ 171. Et quamuis omnis cretio 
certis diebus constringatur, tamen 
alia cretio uulgaris uocatur, alia 
certorum dierum: uulgaris illa, 
quam supra exposuimus, id est in 
qua adiczuntur haec uerba QvIBYS 
SCIET POTERITQVE ; certorum die- 
rum, in qua detractis his uerbis 
cetera scribuntur. 


$ 172. Quarum cretionum magna 
differentia est. nam uulgari cre- 
tione data nulli dies conputantur, 
nisi quibus scierit quisque se here- 
dem esse institutum et possit cer- 
nere. certorum uero dierum cre- 
tione data etiam nescient? se here- 
dem institutum esse numerantur 
dies continui ; item ei quoque qui 
aliqua ex causa cernere prohibetur, 
et eo amplius ei qui sub condicione 
heres institutus est, tempus nume- 
ratur; unde melius et aptius est 
uulgari cretione uti. 


$ 173. Continua haec cretio uoca- 
tur, quia continui dies numerantur. 
sed quia [tamen] dura est haec cretio, 
altera in usu habetur; unde etiam 


uulgaris dicta est. 


DE HEREDUM QUALITATE. 


239 


$ 170. Every period of delibera- 
tion has a certain limit, and a 
reasonable limit is held to be a 
hundred days, yet by the civil law 
a longer or shorter period is allowed 
to be fixed, though a longer period 
is sometimes shortened by the 
praetor. 

§ 171. Although, however, the 
time of deliberation is always 
limited to certain days, yet one 
mode of limitation is called ordi- 
nary, the other determinate; the 
ordinary beingthat above indicated, 
namely, with the addition of the 
words, *after notice of institution 
and available for declaration ;' de- 
terminate that in which these words 
are omitted. 

$ 172. These modes are very 
different in effect, for when the 
ordinary period is allowed no days 
are computed until the heir has 
notice and is in & position to de- 
cide, but when a determinate period 
is allowed, notwithstanding the 
heir's want of notice of his institu- 
tion, the days begin to be counted 
without intermission, and notwith- 
Standing his inability from any 
cause to declare, or any condition 
annexed to his institution, neverthe- 
less the days begin to be reckoned. 
Accordingly, it is better and more 
considerate to employ the ordinary 
mode of limitation. 

§ 173. The determinate period is 
called continuous, because the days 
are reckoned without intermission. 
Because of the harshness of this 
condition the other is commonly 
employed, and hence is called or- 
dinary. 


§ 152. The rules of institution and disinheritance were restric- 
tions of the unlimited power of testamentary disposition conferred 


by the Twelve Tables, 


The general tendency and purpose of 


these restrictions are to protect children against the caprice of 
parents, and to be fully comprehended they should be viewed 


240 DE RERUM UNIVERSITATIBUS. [1.$$152-173. 


in connection with three other branches of law, the rules re- 
specting testamentum inofficiosum, the provisions of the lex 
Falcidia and those of the senatusconsultum Pegasianum. All 
these limitations of testamentary power may be considered as 
correlations and compensations of the patria potestas. An Eng- 
lish testator has unlimited power to dispose of his property, and 
natural feeling is supposed to be a sufficient guaranty that none 
of his children will be left without suitable provision. Of Roman 
testators Justinian says rather crudely: Plerumque parentes sine 
eausa liberos suos vel exheredant vel omittunt, Inst. 2, 18, pr. 
‘Most parents disinherit or pretermit their children without any 
cause.” In spite of this expression, we may conjecture that parental 
caprice was not greater in Rome than in England, but the mon- 
strous development of the patria potestas, whereby the person and 
fortunes of the child were entirely at the mercy of the father during 
his lifetime, made any instance of testamentary caprice seem more 
iniquitous, more intolerable, in Rome than it would in England. 
The restrictions were as follows :— 

(1) We have seen that a suus heres must either be instituted 
or disinherited. This secured him against being simply forgotten. 

(2) If he was disinherited without a cause, or received less than 
one fourth of his share by descent (quarta legitimae), he could by 
impeaching the will as immoral or unnatural (querela inofficiosi 
testamenti) have it set aside on the fictitious presumption of the 
testator’s insanity. The presumption, at least, was so far fictitious 
that it was not allowed to be rebutted by any other proof of his 
sanity except proof of the adequacy of the motives for which the 
child was disinherited. The querela inofficiosi was a form of petitio 
hereditatis, that is, a real action, and fell under the jurisdiction of 
the centumviral court. The amount which must be devised to a 
suus heres to save a will from avoidance for inofficiositas was pro- 
bably fixed by the lex Falcidia, for it is identical with the amount 
which that law secures to the child when instituted heir. The 
querela inofficiosi could not only be brought by suus heres but by 
certain other near relatives, namely, parents, brothers, and sisters, 
but by the two last only if a turpis persona was instituted, and by 
children, even though emancipated, against their father's or mother's 
will; in which cases, it must be confessed, the alleged motive, 
compensation for the patria potestas, is wanting. See Inst. 2, 18, 
Dig. 5, 2. 


m. §§152-173.] DE HEREDUM QUALITATE. 241 


(3) Although a saus heres were instituted heir, yet the institu- 
tion might be made illusory by the exhaustion of the whole inherit- 
ance in legacies, leaving nothing to the heir but the burden of 
administration. To meet this, the lex Falcidia provided that when 
more than three fourths of an inheritance is absorbed in legacies, 
all the legacies should abate proportionably so as to leave the heir 
a clear fourth of the portion in which he was instituted (quarta 
Faleidia). 

(4) The senatus consultum Pegasianum provided against the 
inheritance being similarly exhausted by fideicommissa. 

We may add that an infant adopted by adrogation, if dis- 
inherited or without cause emancipated, was entitled to one 
fourth of the inheritance of his adoptive father (quarta Antonini), 
1 $ 102. 

$ 157. Communism or co-ownership appears to be an older insti- 
tation than divided or individual ownership. Even after the rights 
of the paterfamilias had been enormously developed at the expense 
of the rest of the household, a vestige of the times when property 
vested rather in the family than in the chief was preserved in the 
rules respecting the suus heres. Suus heres appears equivalent to 
&bi heres, and implies that he who now enters on proprietary rights 
in the character of paterfamilias had already possessed proprietary 
nights over the same subject matter in the character of filius- 

Less barbarous than self-successor (the term chosen to represent 
suus heres as expressing sibi heres) but too long for perpetual use, 
would have been the circumlocution, immediate lineal successor. 
Suus heres is a lineal descendant as opposed to the legitimus heres 
or agnate, who is a collateral relation : and he is an immediate suc- 
cessor as opposed to an eventual successor. For instance, a grand- 
son by an unemancipated son is in the grandfather's power, and 
may eventually be his successor, but is not his suus heres during 
the life of the son. 

$162. After accepting an inheritance the heir became liable to 
the testator's ereditors for the full amount of the testator's debts. 
To avoid the danger of accepting an inheritance more onerous than 
lucrative he might by application to the praetor obtain a delay of 
3 hundred days for deliberation. 

Justinian introduced the benefice of Inventory, reducing the 
liability of an heir who made the required inventory to the extent 

R 





242 DE RERUM UNIVERSITATIBUS. [n.$$152-173: 


of the assets that came to his hands. "The inventory must be com- 
menced within thirty days from notice of the inheritance and 
completed in sixty other days. It must be executed in the pre- 
sence of a notary (tabellarius) and the persons interested or three 
witnesses. 

By English law the executor in every case 1s bound to make an 
inventory, and in no case is he answerable to the testator's creditors 
beyond the assets that come to his hands, unless for & sufficient 
consideration he make his own estate chargeable by a written 
engagement, as provided by the Statute of Frauds. 

$ 165. When a right is extinguished by inactivity prolonged for 
a certain period, the period has two modes of measurement: either 
every day is counted, and then the period is called tempus con- 
tinuum ; or only available days, days on which activity is possible, 
are counted ; and. then the period is called tempus utile. When a 
general rule prescribes a term, not greater than a year, within 
which certain steps must be taken before a court or judicial 
authority, on pain of forfeiting certain rights, such a term must 
be measured as tempus utile. Such are the rules requiring certain 
suits to be instituted within a year from their nativity, that is, 

limiting a year for their period of prescription; and the rule 
requiring the demand of the possession of a heritage (agnitio 
bonorum possessionis), whether testate or intestate, to be made, if 
the claimant is an ascendant or descendant, within a year; if he 
is a stranger, within a hundred days. The demand was made in 
writing, addressed to à competent magistrate, and was followed by 
an immediate grant de plano in the form of a simple subscriptio, 
Do bonorum possessionem. Kunzte, 856. When the step required is 
rendered impossible, not by a permanent obstacle, such as infancy, 
lunacy, prodigality, or juristic personality, but by some transitory 
circumstance, the days on which the action is hindered are excluded 
from the computation of the term. 

Such hindrance (1) may relate to the person entitled, and then 
will be his captivity, or his absence on public service, or his deten- 
tion by weather or illness, coupled with inability to appoint a 
procurator : 

- (2) Or, in the case of the limitation of actions, it may relate to 
the person of the defendant: if, for instance, he is unknown, or 
concealed, or absent and undefended : 

(3) Or it may consist in the absence of the praetor from the 


n. § 152-173, ] TEMPUS UTILE. 243 


court. Such absence might be accidental, or it might arise from 
the regular intermission of the dies juridici, or days on which the 
praetor performed his judicial functions, § 279 Comm. As in the 
time of Marcus Aurelius, such days only amounted to 230 in a year 
(Suetonius, Octavianus, 32), this cause alone would make annus 
utilis equivalent to about 14 ordinary years. The intermission of 
dies juridici was doubtless the principal cause of a claimant’s 
inability to perform an act in: court on certain days: but in con- 
temporary Roman law, now that judicial acts consist in delivery 
of writings at the office of a court irrespectively of its session days 
and vacations, this cause has lost its importanee. 

Knowledge (scientia) of the fact that he is entitled’ is not neces- 
sarily requisite on the part of the person entitled : in-other words 
his ignorance is not always sufficient to exclude a day from the 
number of dies utiles. The prescription of an action, when it is 
accomplished in annus utilis, begins to run from its nativity (actio 
nata), irrespectively of the plaintiff's knowledge of his right to sue. 
Ignorance of a right of action is generally the effect of Negligence, 
and therefore undeserving of relief, and might be protracted for 
an indefinite period. On the contrary, ignorance is sometimes 
a condition that delays the commencement of tempus continuum : 
for instanee, the 5O dies continui allowed to & person for stating 
the grounds on which he was entitled to be excused from accepting 
a guardianship only began to run when he had notice of his nomi- 
nation, Inst. 1, 25, 16 : which shows that scientia and ignorantia 
have no necessary relation to the distinction of dies utiles and dies 
continui. 

In the demand (agnitio) of possession, however, by the claimant 
of a testate or intestate succession, the edict expressly made the 
scientia as well as the potestas of the claimant a condition of dies 
utilis, D. 38, 15, 2. Indeed the aditio of an inheritance was not 
valid unless made with a knowledge of the fact of the delatio and 
of its nature, whether testacy or intestacy. Moreover the igno- 
rance of his rights could not be ascribed to the negligence of 
the person entitled, nor was it likely to be indefinitely protracted, 
as it would be the interest of the person next entitled to give him 
notice of the delation. Knowledge will generally only affect the 
beginning of a term, and the person who is once made aware of the 
delation of an inheritance will usually continue aware: but it is 
possible that a period of error should supervene; for instance, that, 

R 2 





244 DE RERUM UNIVERSITATIBUS. [n. §§ 174-184: 


after an agnate has notice that he is entitled by intestacy and after 
his term for acceptance has commenced to run, a forged will should 
be produced and obtain credit : in which case the dies utiles would 
not continue to run until the forgery of the will was ascertained. 
Savigny, § 189. 

The testamentary clause allowing a term for Cretio vulgaris, like 
the edict relating to bonorum possessio, made scientia as well as 
potestas a condition of temporis utilitas. 

§ 178. Acquisitio hereditatis was either Formless; when it might 
be made by express declaration (Aditio) or by tacit declaration (Pro 
herede gestio); or it was Formal (Cretio). Recusatio hereditatis 
was either by verbal declaration (Repudiatio), or by omission of 
acceptance within the term prescribed (Omissio). It could not be 
made after acquisitio. The formularies of cretio, tending to defeat 
institutio in favour of substitutio, had no intelligible policy ; for we 
cannot imagine any rule such as: substitutiones esse adjuvandas. 
After being dispensed with in certain cases by other emperors, they 
were totally abrogated by Justinian: Cretionum scrupulosam sol- 
lennitatem hac lege penitus amputari decernimus, Cod. 6, 80, 17. 
‘Solemn declaration with its embarrassing formalities is hereby 
decreed to be absolutely abolished.” When it became customary for 
the praetor to grant to any devisee who desired it a hundred days 
for deliberation, the designation of such a period by the testator 
became unnecessary. 

No time was prescribed by law for the aditio of the civil in- 
heritance, $ 167: for the acquisition (agnitio) of the praetorian 
succession we have seen that for ascendants and descendants a year 
for others a hundred days was prescribed, Inst. 8, 9, 9. Agnitio 
and Repudiatio could be made by a procurator or agent, D. 37, 1,8, 7 : 
not so aditio, D. 29, 2, 90, and still less Cretio. 


DE VULGARI SUBSTITUTIONE. 


$ 174. [ns svasriTrvTIONIBvS.] — $ 174. Sometimes two or more 
Interdum duos pluresue gradus degrees of heirs are instituted, as 
heredum facimus, hoc modo r. follows: ‘Lucius Titius, be thou 
TITIVS HERES ESTO CERNITOQVE IN my successor, and declare solemnly 
DIEBVS (CENTVM) PROXIMIS QVI- within a hundred available days 
BV8 SCIES POTERISQVE. QVODNI after notice of delation: or, in de- 
ITA CREVEBIS, EXHERES ESTO. TVM fault of so declaring, be disinherit- 
MEVIVS HERES ESTO CERNITOQVE ed. Then, Mevius, be thou my 
IN DIEBVS CENTVM et reliqua. et successor, and declare within a hun- 


n. § 174-184.) DE VULGARI SUBSTITUTIONE. 


deinceps in quantum uelimus sub- 
stituere possumus. 


$175. Et licet nobis uel unum 
in unius locum substituere plures- 
ue, e& contra in plurium locum 
uel unum uel plures substituere. 


$176. Primo itaque gradu scrip- 
tus heres hereditatem cernendo fit 
heres et substitutus excluditur; 
non cernendo summouetur, etiamsi 
pro herede gerat, et in locum eius 
substitutus succedit. et deinceps 
si plures gradus sint, in singulis 
simili ratione idem contingit. 


$ 177. Bed si cretio sine exhere- 
datione sit data, id est im haec 
uerba SI NON CREVERIS, TVM P. 
MEVIVS HERES ESTO, illud diuer- 
sum inuenitur, quod si prior omissa 
cretione pro herede gerat, substi- 
tutum in partem admittit et fiunt 
ambo aequis partibus heredes, 
quodsi neque cernat neque pro 
herede gerat, tum sane in uniuer- 
eum summouetur, et substitutus in 
totam hereditatem succedit. 


$178. Sed Sabino quidem pla- 
euit, quamdiu cernere et eo modo 
heres fieri possit prior, etiamsi pro 
herede gesserit, non tamen admitti 
substitutum ; cum uero cretio finita 
sit, tum pro herede gerente admitti 
substitutum. aléis uero placuit 
etiam superante cretione posse eum 
pro herede gerendo in partem sub- 
stitutum admittere et amplius ad 
cretionem reuerti non posse. 


245 


dred days, &c.; and in this way 
we can make as many substitutions 
as we like. E | 

$ 175. We may substitute in 
place of one either one or several, 
&nd, conversely, in the place of 
several we may substitute either 
geveral or one. 

$ 176. Accordingly, if the person 
instituted in the first degree accepts 
the inheritance, he is heir, and the 
substitutes are excluded: if he fail 
to declare with due formality, he is 
barred in spite of acta of owner- 
ship, and his place is taken by the 
Substitute; andif there are several 
degrees, in every one a similar re- 
sult occurs. 

$ 177. If the formula conferring 
& power of deliberation contains no 
clause of disherison, but merely 
consists of these words: ‘If thou 
fail to declare, be Publius Mevius 
my heir, [cretio imperfecta] the 
result is herein different, that, if 
the person first instituted, though 
he omit the solemn declaration, act 
as heir, the substitute is only ad- 
mitted to a portion, and both take 
a moiety: if he neither formally 
declare nor act as heir, he is en- 
tirely excluded, and the substitute 
takes the whole. 

$178. It was the opinion of 
Sabinus that, as long as a term 
prefixed for formally declaring and 
taking the succession subsists, if a 
person in & higher grade act as 
heir, he does not let in the substi- 
tute, and that [in cretio imperfecta] 
even after the expiration of the 
term his acts of heirship make him 
coheir with the substitute. But 
the other school held that, even 
pending the allotted term, acts of 

eirship let in the substitute and 
bar the prior heir from reverting 
to his right of formal declaration. 





246 


DE PUPILLARI 


§ 179. Liberis nostris inpuberi- 
bus quos in potestate habemus, non 
solum ita, ut supra diximus, sub- 
Btituere possumus, id est ut si 
heredes non extiterint, alius nobis 
heres sit ; sed eo amplius ut etiamsi 
heredes nobis extiterint et adhuc 
inpuberes mortui fuerint, sit iis 
aliquis heres; uelut hoc modo 
TITIVS FILIVS MEVS MIHI HERES 
ESTO, BI FILIVS MEVS MIHI ( HERES 
NON ERIT SIVE HERES) ERIT ET 
PRIVS MORIATVR QVAM IN SVAM 
TVTELAM  VENEBIT, TVNC SEIVS 
" HERES ESTO. 


$180. Quo casu siquidem non 
extiterit heres filius, substitutus 
patri fit heres; si wero heres ex- 
titerit filius et ante pubertatem 
decesserit, ipsi filio fit heres .sub- 
stitutus. quam ob rem duo quo- 
dammodo sunt testamenta, aliud 
patris, aliud filii, temquam si ipse 
filius sibi heredem instituisset ; -aut 
certe unumest testamentum duarum 
hereditatum. 

$ 181. Ceterum ne post obitum 
parentis periculo insidiarum sub- 
lectus uideatur pupillus, in usu est 
uulgarem quidem substitutionem 
palam facere, id est eo loco quo 
pupilum heredem instituimus; 
(nam) uulgaris substitutio ita 
uocat ad hereditatem substitutum, 
si omnino pupillus heres non ex- 
titerit; quod accidit, cum uiuo 
parente moritur, quo casu nullum 
substituti maleficium suspicari pos- 
sumus, cum scilicet uiuo testatore 
omnia quae in testamento scripta 
sint, ignorentur. :llas autem sub- 
stitutionem, per quam ettams: heres 
extiterit pupillus et intra puber- 
tatem decesserit, substitutum uo- 
camus, separatim in inferioribus 
tabulis scribimus, easque tabulas 
proprio lino propriaque cera con- 


DE RERUM UNIVERSITATIBUS. [n.$$174-184. 


SUBSTITUTIONE. 


$ 179. To children below the age 
of puberty in the power of the tes- 
tator, not only can such a substi- 
tute as we have described be ap- 
pointed, that is, one who shall take 
the succession on their failure to 
inherit, but also one who, if after 
inheriting they die before attaining 
the age of puberty, shall be their 
successor; which may be done in 
the following terms: ‘Be my son 
Titius my successor, and if my son 
does not become my successor, or 
after becoming my successor die 
before attaining the age of puberty, 
then be Seius the successor.’ 

.$ 180. In which case, if the son 
fail to inherit, the substitute 1s the 
heir of the testator, but if the son 
die after inheriting and without 
attaining the age of puberty, the 
Bubstitute is heir to the son. Thus 
there are two wills, so to speak, the 
father's and the son's, just as if the 
son had made a successor; or at 
any rate there is one will dealing 
with two inheritances. 

$ 181. However, to save the 
ward from the danger of foul play 
after the death of the parent, it is 
common for the ordinary substitu- 
tion to be made openly, that is, in 
the clause wherein the ward is in- 
stituted, for as the ordinary substi- 
tution only calls a man to the suc- 
eession in ease of the ward altogether 
failing to inherit, and this can only 
occur by his death in the lifetime 
of his parent, the substitute in this 
case is open to no suspicion of 
crime, because while the testator 
is alive the contents of the will 
are a secret. But the substitution 
wherein & man is named heir on 
the succession and death of the 
ward is written separately on later 
tablets, tied with their own cords 
and sealed with their own wax, and 


1. § 174-184.) DE PUPILLARI SUBSTITUTIONE. 


signamus, et in prioribus tabulis 
cauemus, ne inferiores tabulae uiuo 
filio et adbuc inpubere aperiantur. 
sed longe tatius est utrumque genus 
substitutionis [separatim 
ferioribus tabulis consignari, quod 
st ita [consignatae uel] separatae 
fuerint substitutiones, ut diximus, 
ex priore potest intellegi in altera 
falter] quoque idem esse substi- 
tutus. 


$182. Non solum autem here- 
dibus institutis inpuberibus liberis 
ita subetituere possemus, ut si ante 
pubertatem mortui fuerint, sit is 
heres quem nos uoluerimus, sed 
etiam exheredatis. itaque eo casu 
si quid pupillo ex hereditatibus 
legatisue aut donationibus propin- 
quorum adquisitum fuerit, id omne 
ad substitutum pertinet. 

$ 183. Quaecumque diximus de 
substitutione inpuberum liberorum 
uel heredum institutorum uel exhe- 
redatorum, eadem etiam de postu- 
mis intellegemus. 

$ 184. Extraneo uero heredi in- 
stituto ita substituere non possu- 
mes, ut si heres extiterit et intra 
aliquod tempus decesserit, alius ei 
heres sit; sed hoc solum nobis per- 
missum est, ut eum per fideicom- 
missum obligemus, ut hereditatem 
noetram totam uel (pro) parte re- 
stituat; quod ius quale sit, suo loco 

emus, 


in in-' 


247 


prohibited in the prior tablets to 
be opened in the lifetime of the son 
before he attains the age of puberty. 
Indeed it is far safer that both 
kinds of substitution should be 
sealed up separately in two subse- 
quent tablets, for if the ordinary 
substitution is contained in the 
first tablets it is easy to conjecture 
that the same substitute is appoint- 
ed in the second. j 

$ 182. Not only when we leave 
our succession to children under 
the age of puberty can we make 
such a substitution that if they die 
before puberty tbe substitute is 
their successor, but we can do it 
when we disinherit them, so that 
whatever the ward acquires by de- 
vises, legacies, donations of his rela- 
tives, all passes to the substitute. 

$ 183. What has been said of 
substitution to children below the : 
age of puberty, whether appointed 
heirs or disinherited, is true of sub- 
stitution to afterborn children. 

$ 184. To a stranger instituted 
heir we cannot appoint & subetitute 
who, if the stranger inherit and die 
within a certain time, shall be his 
successor ; we have only the power 
to bind him by a trust to convey 
the inheritance to another, in part 
or in whole, a right which shall 
be explained in the proper place. 
[2 § 277.] 


6177. A constitution of Marcus Aurelius changing this rule, 


and mentioned by Ulpian: Sed postea divus Marcus constituit, ut 
et pro herede gerendo ex asse fiat heres, 22, 84: ' Subsequently 
Marcus Aurelius enacted that acts of heirship should make him 
exclusive heir, was clearly not enacted when this paragraph was 
written by Gaius, and furnishes an indication of the date at which 
this book of his Institutions was published. Marcus Aurelius was 
sole emperor A.D. 169—176. 

$179. Cicero frequently mentions a great case in which the 
question arose whether a vulgaris substitutio may be implied from 
a pupillaris substitutio, The centumviral court decided that the 


248 DE RERUM UNIVERSITATIBUS. ([1. § 185-190. 


intention rather than the words of the testator should prevail, and 
that the heir appointed to succeed the son in case the son died 
before puberty should be deemed appointed to succeed the testator 
in case no son was born: Malim mihi L. Crassi unam pro M’. 
Curio dictionem quam castellanos triumphos duos, Brutus, 73. 
‘I would rather have made the single speech of Lucius Crassus 
for Manius Curius than have had two triumphs for the capture of 
fortresses.’ The other passages are worth referring to, De Orat. 
1, 89,:57; 2, 6, 32; Brutus, 39, 52; Pro Caecina, 18; Topica, 10. 
Marcus Aurelius enacted that in every case pupillaris substitutio 
should be implied in vulgaris substitutio and vice versá, unless the 
contrary intention was expressed, Dig. 28, 6, 4. 

§ 184. That is to say, we cannot limit an estate in remainder so 
that it shall take effect, without the aid of reconveyance, after the 
determination of the intervening estate for life. All we can do is to 
direct the tenant for life to reconvey at his death to the remainder- 
man. Hereditas is indelible (semel heres semper heres). Regula 
‘ est juris civilis qua constitutum est hereditatem adimi non posse. 
D. 28, 2, 18, 1. 


DE HEREDIBUS INSTITUENDIS. 





$ 185. Sicut autem liberi homi- 
nes, ita et serui, tam nostri quam 
alieni, heredes scribi possunt. 


§ 186. Sed noster seruus simul 
et liber et heres esse iuberi debet, 
id est hoc modo sTICHVS SERVVS 
MEVS LIBER HERESQVE ESTO, uel 
HERES LIBERQVE ESTO. 


$ 187. Nam si sine libertate 
heres institutus sit, etiamsi postea 
manumissus fuerit & domino, heres 
esse non potest, quia institutio in 
persona eius non constitit ; ideoque 
licet alienatus sit, non potest iussu 
domini noui cernere hereditatem. 


§ 188. Cum libertate uero heres 
institutus siquidem in eadem causa 
durauerit, fit ex testamento liber et 
inde necessarius heres. si uero ab 
ipso testatore manumissus fuerit, 
suo arbitrio hereditstem adire po- 


$ 185. Not only freemen but 
slaves, whether belonging to the 
testator or to another person, may 
be instituted heirs. 

$ 186. A slave belonging to the 
testator must be simultaneously 
instituted and enfranchised in the 
following manner: ‘Stichus, my 
slave, be free and be my heir ;" or, 
‘ Be my heir and be free.’ 

§ 187. Lf he is not enfranchised 
at the same time that he is ineti- 
tuted, no subsequent manumission 
by his owner enables him to take 
the succession, because the institu- 
tion is originally void, and if aliened 
he cannot declare his acceptance by 
the order of the alienee. 

$188. When a slave is simul- 
taneously instituted and enfran- 
chised, if he continue in the same 
condition, the will converta him 
into a freeman and a necessary heir : 
if the testator himself manumits 


wr. § 186-190.] DE HEREDIBUS INSTITUENDIS. 


test. quodsi alienatus sit, iussu 
noui domin? adire hereditatem de- 
bet, qua ratione per eum dominus 
Bt heres; nam ipse neque heres 
neque liber esse potest. — 


§ 189. Alienus quoque seruus 
heres institutus si in eadem eausa 
durauerit, iussu domini hereditatem 
adire debet; si uero alienatus ab eo 
fuerit aut uiuo testatore aut post 
mortem eius, antequam cernat, de- 
bet iussu noui domini cermere ; si 
uero manumissus est, suo arbitrio 
adire hereditatem potest. 


$190. Si autem seruus alienus 
heres institutus est uulgari cre- 
tione data, ita intellegitur dies cre- 
tionis cedere, si ipse seruus scierit 
se heredem institutum esse, nec 
ullum inpedimentum sit, quominus 
eertiorem dominum faceret, ut illius 
lussu cernere possit. 


249 


him in his lifetime, he may use his 
own discretion about acceptance: 
if he is aliened he must have the 
order of his new master to accept, 
and then his master through him 
becomes successor, the alienated 
slave himself becoming neither suc- 
cessor nor free. 

$189. When another person's 
slave is instituted heir, if he con- 
tinue in the same position, he must 
have the order of his master to 
accept the succession; if aliened 
by him in the lifetime of the tes- 
tator, or before formal acceptance, 
he must have the order of the 
alienee to accept: if manumitted 
before acceptance, he may follow 
his own judgment as to accepting. 

§ 190. When a slave of another 
person is instituted heir with the 
ordinary term allowed for delibera- 
tion, the term only begins to run 
when the slave has notice of his ap- 
pointment, and is not disabled from 
informing his master so that he may 
obtain his order for acceptance. | 


$187. This rule was abolished by Justinian, who enacted that 


the enfranchisement of the testator's slave, though unexpressed, 
should always be implied in his institution as heir. Cod. 6, 27,5; 
Inst. 1, 6, 2. 

$188. Justinian explains why the slave lost his liberty: Des- 
titisse enim a libertatis datione videtur dominus qui eum alienavit, 
Inst. 2, 14, 1. ‘A revocation of the bequest of liberty is inferred 
from the fact of his alienation.’ If we ask why the implied inten- 
tion that suffices to revoke the enfranchisement does not suffice to 
revoke the institution, the answer is, that a bequest can be revoked 
by implied intention, whereas an institution requires 4 more solemn 
revocation, by cancellation of the will, or execution of a later will, 
or some other means, § 151. 

$ 189. What was the motive of instituting as successor the slave 
of another person? Such a disposition eould not be dictated by 
kindness to the slave, for he would gain nothing by his institution ; 
but was a device adopted for two purposes, (1) for facilitating the 


250 DE RERUM UNIVERSITATIBUS. (a. §§ 185-190. 


conversion of a succession into money, and (2) for securing a 
devise against lapse. 

(1) By such a disposition the testator gave the devisee who was 
proprietor of the slave the option of either becoming actual suc- 
cessor, or of doing, what he could not otherwise readily do [2 § 36], 
i.e. of receiving the net value, or a large portion of the net value, 
of the succession, without incurring the expense of the annexed 
sacred rites (sacra) and the burden of administration, by practi- 
cally selling the succession for the highest price he could get to 
any one who was willing to incur these expenses and troubles 
as a matter of speculation. To effect this, he had only to sell 
the slave at a price enhanced by his character of institutus. The 
slave thereupon, making aditio of the inheritance in obedience to 
an order of the purchaser, vested the inheritance in the purchaser. 
If the former proprietor was reluctant to part with his slave, he had 
only to bargain for his reconveyance by a fiducia or covenant 
annexed to the sale or mancipatio. Reddendus (i.e. mancipandus) 
est servus ea conditione ut, cum jussu ejus adierit, rursum retra- 
datur. By this branch of speculation the instituted slave might 
pass through many hands before the succession vested, D. 37, 11, 

2, 9. 

.. (a) A second object gained by the institution of another person's 
slave was the transmission of an inheritance to the heirs of an 
intended devisee. If the devisee died in the lifetime of the testator, 
the devise lapsed, and the lapse could not be prevented by the 
substitution (secondary institution) of the heir of the devisee, for 
such heir would be a persona incerta, $ 242. The difficulty was 
met by instituting a slave, who on the death of his master, the 
virtual devisee, would become the slave of the devisee's successor, 
and acquire for him the succession of the testator. To guard 
against the contingency of the death of the slave in the lifetime 
of the testator, several slaves might be instituted by way of sub- 
stitution. Ihering, $ 56. Hereditas delated to a slave is said to be 
Ambulatoria: Ambulat cum dominio hereditas servo delata, D. 37, 
11, 2, 9. So we might say: ambulat cum capite noxa, 4 $ 77. 

$ 190. In the corresponding title of the Institutes, 2, 14, Justinian 
mentions that an heir might either be appointed to take the whole 
of an inheritance or to share it with other coheirs in any propor- 
tions. We may briefly state the technical terms and rules of inter- 
pretation by which different shares were allotted. An inheritance 


1.$6$185-190.] DE HEREDIBUS INSTITUENDIS. 261 


was commonly regarded as a pound (as) consisting of twelve ounces 
(unciae). The different fractions were thus denominated : uncia, 
a twelfth of an as, or an ounce; sextans, a sixth of an as, or two 
ounces ; quadrans, a fourth of an as, or three ounces ; triens, a third 
of an as, or four ounces; quincunx, five ounces; semis, half an as, 
or six ounces; septunx, seven ounces; bes (bis triens), two thirds 
of an as, or eight ounces ; dodrans (deme quadrantem), an as minus 
& fourth, or nine ounces; dextans (deme sextantem), an as minus 
a sixth, or ten ounces ; deunx (deme unciam), an as minus an ounce, 
or eleven ounces; as, twelve ounces. 

Àn heir instituted in twelve ounces (ex asse) took the whole: but 
it was a rule that no one could be partly testate and partly intes- 
tate, and therefore if an heir were instituted in a part (ex parte) 
and no other coheir instituted, that part represented & pound, and 
the heir took the whole. So if the shares allotted to several coheirs 
amounted to more than twelve ounces, then, if no other heir was 
appointed with an unexpressed share, the as was deemed to consist 
of more than twelve ounces, and each coheir took a ratable part of 
the inheritance. If one heir were instituted in a part, say ex besse, 
and a coheir were instituted for whom no part was expressed, then 
the coheir would take the residue of the as, that is, would be 
deemed. to be instituted ex triente. But if the parts expressed for 
certam heirs exhausted or exceeded the as and another heir or heirs 
were named without express shares, then the whole inheritance was 
supposed to consist of two asses (dupondius) and the expressed 
shares were reduced to so many ounces out of twenty-four, the heir 
_or heirs with unexpressed parts taking the residue. Similarly, 
if necessary, the inheritance was supposed to consist of thirty-six 
ounces. 

If the institution of one coheir lapsed, the shares of the remaining 

coheirs were ratably augmented (accretio) just as, if originally 
less than twelve ounces had been distributed, the expressed shares 
of each would be ratably augmented so as to exhaust the inherit- 
ance. 
This rule, however, was modified by the leges caducariae, passed 
chiefly to discourage celibacy, namely the lex Julia de maritandis 
ordinibus, a.p. 4, and the lex Papia Poppaea, on marriage and suc- 
cession, A. D. 9, in which the provisions of the lex Julia were in- 
eorporated, for which reason both laws are sometimes referred to as 
lex Julia et Papia. 


252 DE RERUM UNIVERSITATIBUS. [11 §§ 186-190. 


Caducum is a devise or bequest, valid at Civil law, but vacated 
by some particular statute, Ulpian, 17, 1. ‘A vacant devise or 
bequest is one valid at civil law, but lapsed by some statute, such 
as a legacy to a celibate or Latinus Junianus, who fails within 
a hundred days to comply with the law, or acquire full citizen- 
ship; or a devise to a coheir, or bequest to a legatee who dies 
or becomes an alien before the will is opened [By the Civil law, 
unconditional devises and bequeste vested (dies cedit) at the death 
of the testator (though still defeasible by the failure of the will); 
by the lex Papia Poppaea not before the opening of the will, 
but Justinian reestablished the rule of Civil law.] 

The leges caducariae, which fixed the conditions of caducity, 
were aimed against the coelebs and the orbus. Coelebs is defined 
io be an unmarried man between the age of twenty and sixty, 
or an unmarried woman between the age of twenty and fifty. 
Orbus is & man between fifty and sixty without children, natural 
or adoptive. 

A celibate could take nothing as heres extraneus or legatee; an 
orbus could only take half of the devise or bequest intended for 
him. The devises thus lapsed were allotted by the leges caducariae 
in the first place to conjoint legatees of the same specific thing with 
children ; in the second place to heirs with children; in the third 
place to other legatees with children; and in last remainder to 
the treasury (aerarium), 2 § 206. Caracalla, a.D. 212-217, made them 
lapse immediately to the treasury ; Hodie ex constitutione impera- 
toris Antonini omnia caduca fisco vindicantur, sed servato jure 
antiquo liberis et parentibus, Ulpian, 17,2, * At present by a consti- , 
tution of Caracalla, all caducous devises are confiscated, saving the 
rights of ascendants and descendants.’ From the rules of caducity 
ascendants and descendants of the testator to the third degree were 
excepted both by the lex Papia and by the constitution of Caracalla. 
Constantine, A.D. 820, abolished the pains and penalties of celibacy 
and childlessness, Cod. 8, 58, and Justinian formally and finally 
abrogated the leges caducariae. 

By substitutions or alternative institutions testators were able to 
modify the course of accrual by Civil law (jus accrescendi), and 
what perhaps was still more interesting, to escape from the opera- 
tion of the laws of caducity, by which sometimes a whole inherit- 
ance might fall into the clutches of the treasury. 


n. $$ 191-223. ] 


$191. Post haec uideamus de 
legatis. quae pars iuris extra pro- 
positam quidem materiam uidetur; 
nam loquimur de his iuris figuris, 
quibus per uniuersitatem res nobis 
sdquiruntur; sed cum omni modo 
de testamentis deque heredibus qui 
testamento instituuntur, locuti su- 
mus, non sine causa sequenti loco 
poterit haec iuris materia tractari. 


DE LEGATIS. 


258 


$ 191. Let us now examine lega- 
cies, a kind of title which seems 
foreign to the matter in hand, for 
we are expounding titles whereby 
aggregates of rights are acquired ; 
but we had at any rate to treat 
of wills and heirs appointed by 
will, and it is natural in close 
connection therewith to consider 
this species of title [for a legacy ig 
an accessory of a willl. 


DE LEGATIS. 


$192. Legatorum itaque genera 
sunt quattuor: aut enim per uindi- 
cationem legamus aut per damna- 
fionem aut sinendi modo aut per 
praeceptionem. 

$193. Per uindicationem hoc 
modo legamus TITIO uerbi gratia 
HOMINEM STICHVM DO LEGO; sed 
(e!) si alterutrum uerbum positum 
ait, ueluti Do aut LEGO, aeque per 
uindicationem legatum est; item, 
ut magis «isum est, si ita legatum 
fuerit SVMITO, uel ita SIBI HABETO, 
uel ita CAPITO, aeque per uindica- 
tionem legatum est. 


$194. Ideo autem per uindica- 
tonem legatum appellatur, quia 
post aditam hereditatem statim ex 
iure Quiritium res legatarti fit; et 
si eam rem legatarius uel ab herede 
uel ab alio quocumque qui eam pos- 
sidet, petat, uindicare debet, id est 
intendere suam rem ex iure Quiri- 
Gum esse. 

$ 195. In eo solo dissentiunt 
prudentes, quod Sabinus quidem et 
Cassius ceterique nostri praecep- 
lores quod ita legatum sit, statim 
post aditam hereditatem putant 
fleri legatarii, etinumsi ignoret sibi 
legatum | esse [dimissum], sed post- 
eaquam scierit et — lega|tum, pro- 
inde esse atque si legatum non es- 
set; Nerua uero et Proculus cete- 
rique illus scholae auctores non 


$192. Legacies are of four kinds; 
by vindication, by condemnation, 
by permission, by preception. 


§ 193. A legacy by vindication is 
in the following form: ‘To Lucius 
Titius I give and bequeath, say, my 
slave Stichus,’ or only one word 
need be used as,‘I give or be- 
queath my slave Stichus;’ and 
other terms such as: ‘Let him 
take,’ ‘Let him have,’ ‘Let him 
seize, equally confer a legacy by 
vindication according to the pre- 
vailing opinion. 

§ 194. It is so called, because 
immediately on the acceptance of 
the succession the thing becomes 
the Quiritarian property of the le- 
gatee, and if he claims it from the 
heir or any other possessor, he ought 
to bring a real action, that is, de- 
clare himself proprietor thereof by 
law of the Quirites. 

§ 195. However there is a con- 
troversy on this matter between 
jurists, for according to Sabinus 
and Cassius and the other autho- 
rities of my school, what is thus left 
becomes the property of the legatee 
immediately on the acceptance of 
the succession, even before he has 
notice of the legacy, and on notice 
and repudiation by the legatee, the 
legacy is cancelled. Nerva and 





254 DE RERUM UNIVERSITATIBUS. [n.$$191-223. 


aliter putant rem legatarü fieri, 
quam si uoluerit eam ad se perti- 
nere. sed hodie ex diui Pii An- 
tonini constitutione hoc magis iure 
uti videmur quod Proculo placuit ; 
nam cum legatus fuisset Latinus 
per uindicationem coloniae, Deli- 
berent, inquit, decuriones, an ad se 
uelint pertinere, proinde ac si uni 
legatus esset. 


§ 196. Hae autem solae res per 
uindicationem legantur recte, quae 
ex iure Quiritium ipsius testatoris 
sunt. sed eas quidem res quae 
pondere numero mensura constant, 
placuit sufficere, si mortis tempore 
Sint ex iure Quiritium testatoris, 
ueluti uinum oleum frumentum 
pecuniam numeratam. ceteras res 
uero placuit utroque tempore tes- 
tatoris ex iure Quiritium esse de- 
bere, id est et quo faceret testamen- 
tum et quo moreretur; alioquin 
inutile est legatum. 

$ 197. Sed sane hoc ita est iure 
ciuili. postea uero auctore Nerone 
Caesare senatusconsultum factum 
est quo cautum est, ut si eam rem 
quisque legauerit quae eius num- 
quam fuerit, proinde utile sit lega- 
tum, atque si optimo iure relictum 
esset ; optéimum autem ius est per 
damnationem legati, quo genere 
etiam aliena res legari potest, sicut 
inferius apparebit, 


$ 198. Sed si quis rem suam le- 
gauerit, deinde post testamentum 
factum eam alienauerit, plerique 
putant non solum iure ciuili inutile 
esse legatum, sed nec ex senatus- 
consulto confirmari. quod ideo dic- 
tum est, quia et si per damnationem 
aliquis rem suam legauerit eamque 
postea alienauerit, plerique putant, 
licet ipso iure debeatur legatum, 


Proculus and the jurists of that 
school make the passing of the pro- 
perty to the legatee depend on his 
accepting the legacy; and now a 
constitution of the late emperor 
Pius Antoninus seems to have estab- 
lished the doctrine of Proculus as 
the rule, for in the case of a Latinus 
Junianus bequeathed by vindica- 
tion to a colony (juristic person), 
he said, *The senate must deliberate 
whether they wish to become pro- 
prietors just as if the bequest was 
to a natural person.’ 

§ 196. Only those things are 
properly bequeathed by vindication 
which are the Quiritarian property 
of the testator; things, however, 
estimated by weight, number, or 
measure, need only be the Quiri- 
tarian property of the testator at 
the time of his death, for instance, 
wine, oil, corn, ready-money : other 
things are required to be the tes- 
tator's Quiritarian property at both 
periods, both at the time of his 
death and at the time of making 
his will, or the legacy is void. 

$ 197. However, this is only the 
civil law. In later times, on the 
proposition of Nero, a senatuscon- 
sult was passed, providing that if a 
testator bequeathed a thing which 
never belonged to him, the bequest 
should be as valid as if it were 
made in the most favourable form ; 
the most favourable form being by 
condemnation, whereby the property 
of another person may be be- 
queathed, as will presently appear. 

§ 198. If a man bequeath a thing 
belonging to him, and afterwards 
aliene it, most jurists agree that the 
bequest is not only avoided at civil 
law, but recovers no validity by the 
senatusconsult, because, even when 
a thing is bequeathed by condemna- 
tion and afterwards aliened, al- 
though the contention of a nght by 
the suing legatee is valid, it is gene- 


11. §§ 191-223. ] 


tamen legatarium petentem posse 
per exceptionem doli mali repelli, 
quasi contra uoluntatem defuncti 


petat. 

$199. Illud constat, si duobus 
pluribusue per uindicationem eadem 
res legata sit, siue coniunctim siue 
disiunctim, et omnes ueniant ad 
legatum, partes ad singulos perti- 
nere et deficientis portionem col- 
legatario adcrescere. coniunctim 
autem ita legatur TITIO ET 8EIO 
HOMINEM STICHVM DO LEGO; dis- 
lunctin ita L. TITIO HOMINEM 
STICHYM DO LEGO. 8EIO EVNDEM 
HOMINEM DO LEGO. 


$ 200. Illud quaeritur, quod sub 
condicione per uindicationem lega- 
tum est, pendente condicione cuius 
sit, nostri praeceptóres heredis 
esse putant exemplo statuliberi, id 
est eius serui qui testamento sub 
aliqua condicione liber esse iussus 
est; quem constat interea heredis 
seruum esse. sed diuersae scholae 
auctores putant nullius interim eam 
rem esse ; quod multo magis dicunt 
de eo quod [sine condicione] pure 
legatum est, antequam legatarius 
admittat legatum. 

$ 201. Per damnationem hoc 
modo legamus HERES MEVS STICHVM 
SERVVM MEVM DARE DAMNAS ESTO; 
sed et si DATO scriptum fuerit, per 
damnationem legatum est. 

$ 202. Eoque genere legati etiam 
aliena res legari potest, tta ut heres 
redimere (rem) et praestare aut 
aestimationem eius dare debeat. 


$203. Ea quoque res quae in 
rerum natura non est, si modo fu- 
tura est, per damnationem legari 
potest, uelut. FRVCTVS QVI IN ILLO 
FYVNDO NATI ERVNT, aut QVOD EX 
ILLA ANCILLA NATYM ERIT. 


DE LEGATIS, 


255. 


rally agreed that his claim is coun- 
terpoised by the plea of fraud, as 
contravening the testator'sintention. 


$ 199. Tt is & settled rule, that if 
the same thing be bequeathed by 
vindication to two or more persons, 
whether jointly [in the same sen- 
tence] or severally [in different 
sentences], and all claim the legacy, 
each is only entitled to a ratable 
part, but à lapsed portion accrues 
to the colegatees. A joint bequest 
is as follows: ‘To Titius and Seius 
I give and bequeath my slave Sti- 
chus;' a several bequest as fol- 
lows: * To Lucius Titius I give 
and bequeath my slave Stichus. 
To Seius I give and bequeath the 
same slave.’ 

$ 200. When a condition is an- 
nexed to & bequest by vindication, 
it is & question who, pending the 
condition, is the owner: my school 
say, the heir, as in the case of the 
slave conditionally enfranchised by 
will, who is admittedly in the in- 
terim the property of the heir: 
the other school assert that there is 
no interim proprietor, and they in- 
sist still more strongly that this is 
so in the case of an unconditiona] 
gimple bequest beforethe acceptance 
by the legatee. 

$ 201. A legacy by condemna- 
tion is in the following form: ‘ Be 
my heir condemned to give my 
slave Stichus, or simply, ‘ Let my 
heir give my slave Stichus.’ 

§ 202. By this form a testator 
may bequeath a thing belonging to 
another person, binding the heir to 
purchase and deliver the specific 
thing, or pay its value. 

§ 203. A thing which does not 
exist but will exist may be be- 
queathed by condemnation, as the 
produce of such and such land, or 
the child of such and such female 
slave. 


256 


§ 204. Quod autem ita legatum 
est, post aditam hereditatem, etiamsi 
pure legatum est, non, ut per uin- 
dicationem Jegatum, continuo lega- 
tario adquiritur, sed nihilo minus 
heredis est. et ideo legatarius in 
personam agere debet, id est inten- 
dere heredem sibi dare oportere ; 
et tum heres, si (res) mancipti sit, 
mancipio dare aut in iure cedere 
possessionemque tradere debet; si 
neo mancipii sit, sufficit si tradi- 
derit. nam si mancipiü rem tantum 
tradiderit nec mancipauerit, usuca- 
pione pleno iure fit legatarü; con- 
pletur autem usucapio, sicut alio 
quoque loco diximus, mobilium qui- 
dem rerum anno, earum uero quae 
solo tenentur, biennio. 


$ 205. Est et illa differentia 
huius (et) per uindicationem le- 
gati, quod si eadem res duobus 
pluribusue per damnationem legata 
git, siquidem coniunctim, plane sin- 
gulis partes debentur, sicut in illo 
. (quod. per) uindicationem legatum 
est, st wero disiunctim, singulis 
solidum debetur. ita fit, ut scilicet 
heres alteri rem, alteri aestima- 
tionem eius praestare debeat. et 
in coniunctis deficientis portio non 
ad collegatarium pertinet, sed in 
hereditate remanet. 


$ 206. Quod autem diximus de- 
fieientis portionem im per damna- 
tionem quidem legato in hereditate 
retineri, in per uindicationem uero 
collegatario adcrescere, admonendi 
sumus ante legem Papiam hoc iure 
ciuili ita fuisse; post legem uero 
Papiam deficientis portio caduca fit 
et ad eos pertinet qui in eo testa- 
mento liberos habent. 

$ 207. Et quamuis prima causa 


DE RERUM UNIVERSITATIBUS. (m.$$191-223. 


$ 204. Bequests in this form, 
even though no condition is an- 
nexed, unlike bequests by vindi- 
cation, are not forthwith on the 
&cceptance of the succession the 
property of the legatee, but continue 
the property of the heir, and the 
legatee must sue for them by per- 
sonal action, that is, declare that 
the heir is bound to convey, and 
the beir, if the thing 1s mancipable, 
must convey it by mancipation or 
default in a fictitious vindication 
and livery of seisin; if not manci- 
pable, by mere delivery of pos- 
session: for if a mancipable thing 
is merely delivered without man- 
cipation, the legatee must acquire 
plenary dominion by usucapion, and 
usucapion, as before mentioned, 
in the case of movables requires 
a years possession, in the case 
of immovables two years’ posses- 
sion. 

§ 205. There is another difference 
between bequest by vindication and 
bequest by condemnation herein, 
that if the same thing is bequeathed 
to two or more by condemnation, 
if they are named jointly, each is 
entitled to a ratable part, as in 
legacy by vindication ; if severally, 
each is entitled to the whole, and 
the heir is bound to convey the 
specific thing to one, and the value 
to the other; and in a joint be- 
quest a lapsed portion does not 
accrue to the colegatee, but belongs 
to the heir. 

§ 206. The statement that a 
lapsed portion in legacy by con- 
demnation falls to the heir, and in 
legacy by vindication accrues to the 
colegatee, be it observed, gives the 
rule of the civil law before the lex 
Papia; but since the lex Papia, 
a lapsed portion becomes caducous, 
and belongs to the devisees who 
have children. 

§ 207. And although the first 





r1. $$ 191-223. ] 


sit in caducis uindicandis heredum 
liberos habentium, deinde si heredes 
liberos non habeant, legatariorum 
liberos habentium, tamen ipsa lege 
Papia significatur, ut, collegatarius 
contunctus, ai liberos habeat, potior 
sit heredibus, etiamsi liberos habe- 
bunt. 

§ 208. Sed plerisque placuit, 
quantum ad hoc ius quod lege 
Papia coniunctis constituitar, nihil 
interesse, utrum per uindicationem 
an per damnationem legatum sit. 


$ 209. Sinendi modo ita legamus 
HERES MEVS DAMNAS ESTO SINERE 
L. TITIVM HOMINEM 8TICHVM 8V- 
MERE SIBIQVE HABERE. 


$210. Quod genus legati plus 
quidem habet (quam) per uindica- 
tionem legatum, minus autem quam 
per damnafionem. nam eo modo 
non solum suam rem testator uti- 
liter legare potest, sed etiam here- 
dis sui; cum alioquin per uindica- 
lionem nisi suam rem legare non 
potest, per damnationem autem 
cuiuslibet extranei rem legare po- 
test. 


$ 211. Sed siquidem mortis tes- 
tatoris tempore res uel ipeius testa- 
toris sit uel heredis, plane utile 
legatum est, etiamsi testamenti 
faciendi tempore neutrius fuerit. 


$ 212. Quodsi post mortem tes- 
tatoris ea res heredis esse coeperit, 
quaeritur an utile sit legatum. et 
plerique putant inutile esse. quid 
ergo est? licet aliquis eam rem 
legauerit quae neque eius umquam 
fuerit neque postes heredis eius 
umquam esse coeperit, ex senatus- 
consulto Neroniano proinde uide- 
tur, ac si per damnationem relicta 
esset. 

$ 213. Sicut autem per damna- 
tionem legata res non statim post 


DE LEGATIS. 


257 


title to a caducous legacy is that of 
heirs with children, and the second, 
if the heirs are childless, of legatees 
with children, yet the lex Papia 
itself declares that in a joint 
bequest a co-legatee with children 
is to be preferred to heirs with 
children. 

$ 208. And it is generally agreed 
that as to the rights which the lex 
Papia gives to joint legatees, it 
makes no difference whether the 
bequest is by vindication or by 
condemnation. 

§ 209. A bequest by permission 
is in the following form: ‘Be my 
heir condemned to permit Lucius 
Titius to take and to have to him- 
self my slave Stichus.’ 

$210. A bequest in this form has 
more latitude than one in the form 
of vindication, but less than one in 
the form of condemnation, for here- 
by not only can the testator's prc- 
perty be effectively bequeathed, but 
also that of the heir, whereas by 
the form of vindication the testa- 
tor can only bequeath his own pro- 
perty, and by the form of condem- 
nation he can bequeath the property 
of any stranger. 

§ 211. If at the time of the 
testator’s death a thing belong to 
the testator or the heir, the bequest 
is valid, even though at the time 
of making the will it belonged to 
neither. 

§ 212. If it first belong to the 
heir after the death of the testator 
it is a question whether the bequest 
is valid, and it is generally held to 
be invalid. However, even though 
a thing bequeathed never belonged 
either to the testator or to the heir, 
by the senatusconsult of Nero all 
bequests are put on the same foot- 
ing as a bequest by condemnation. 


§ 213. Just asa thing bequeathed 
by condemnation does not immedi+ 


258 


aditam hereditatem legatarti effici- 
tur, sed manet heredis eo usque, 
donec is [heres] tradendo uel man- 
cipando uel in iure cedendo legatarzi 
eam fecerit, ita et in sinendi modo 
legato iuris est ; et ideo huius quo- 
que legati nomine in personam actio 
est QVIDQVID HEREDEM EX TESTA- 
MENTO DARE FACERE OPORTET. 


$ 214. Sunt tamen qui putant ex 
hoc legato non uideri obligatum 
heredem, ut mancipet aut in iure 
cedat aut tradat, sed sufficere ut 
legatarium rem sumere patiatur; 
quia nihil ultra ei testator imper- 
auit, quam uf sinat, id est patiatur, 
legatarium rem sibi habere. 

$215. Maior illa dissensio in hoc 
legato interuenit, si eandem rem 
duobus pluribusue disiunctim le- 
gasti; quidam putant utrisque 
solidam deberi, [sicut per uindica- 
tionem ;] nonnulli occupantis esse 
meliorem condicionem aestimant, 
quia cum eo genere legati damnetur 
heres patientiam praestare, ut lega- 
tarius rem habeat, sequitur, ut si 
priori patientiam praestiterit et is 
rem sumpserit, securus sit aduersus 
eum qui postea legatum petierit, 
quia neque habet rem, ut patiatur 
eam ab eo sumi, neque dolo malo 
fecit quominus eam rem haberet. 


$ 216. Per praeceptionem hoc 
modo legamus L. TITIVS HOMINEM 
STICHVM PRAECIPITO. 


$ 217. Sed nostri quidem prae- 
ceptores nulli alti eo modo legari 
posse putant, nisi ei qui aliqua ex 
parte heres scriptus esset; praeci- 
pere enim esse praecipuum sumere ; 
quod tantum in eius persona pro- 
cedit qui aliqua ex parte herés in- 
atitutus est, quod is extra portionem 


DE RERUM UNIVERSITATIBUS. [1.$$191-223. 


ately on the acceptance of the suc- 
cession belong to the legatee, but 
continues to belong to the heir un- 
til by delivery, or mancipation, or 
default in a fictitious vindication, 
he makes it the property of the 
legatee; so it happens in bequest 
by permission, and accordingly this 
form of bequest is ground to sup- 
port a personal action in the terms: 
“Whatever the heir is bound by the 
will to convey or perform.’ 

§ 214. Although some hold that 
a bequest in this form does not bind 
the heir to mancipate or cede by 
fictitious action, or deliver, but is 
satisfied by the legatee being per- 
mitted to take the thing, as the 
testator only enjoined the heir to 
let him have it. 

§ 215. A more serious question 
arises in another point respecting 
this form of bequest: if the same 
thing is bequeathed severally to two 
or more, some hold that each is 
entitled to the whole, as in bequest 
by vindication; others hold that 
the first occupant is alone entitled, 
because as this form of bequest only 
condemns the heir to suffer the 
legatee to have the thing, as soon 
as the first occupant has been suf- 
fered to take it, the heir is safe 
against any subsequent claimant, as 
he neither has possession of the 
thing, so as to let it again be taken, 
nor has fraudulently parted with 
possession, 

$ 216. A bequest by preception 
is in the following form: ‘ Let 
Lucius Titius take my slave Stichus 
by preception [before partition ].' 

$ 217. My school hold tbat such 
& bequest can only be made to one 
of several coheirs, because precep- 
tion, or previous taking, can only be 
attributed to a person who, taking 
as heir, over and above his por- 
tion as heir, and before partition of 
the inheritance between the coheirs, 


n. $$191-223.] 


hereditatis praecipuum legatum ha- 
biturus sit. 

$218. Ideoque si extraneo lega- 
tum fuerit, inutile est legatum ; adeo 
ut Sabinus existimauerit ne quidem 
ex (senatus)consulto  Neroniano 
posse conualescere: nam eo, inquit, 
senatusconsulto ea tantum confir- 
mantur quae uerborum uitio iure 
ciuili non ualent, non quae propter 
ipsam personam legatari non de- 
berentur. sed Iuliano et Sexto 
placuit etiam hoc casu ex senatus- 
consulto confirmari legatum; nam 
ex uerbis etiam hoc casu accidere, 
ut iure ciuili inutile sit legatum, 
inde manifestum esse, quod eidem 
altis uerbis recte legatur, ueluti per 
uindicationem, per damnationem, 
sinendi modo; tunc autem uitio 
personae legatum non ualere, cum 
ei legatum sit, cui nullo modo legari 
possit, uelut peregrino, cum quo 
testamenti factio non sit; quo 
plane casu senatusconsulto locus 
non est. 

$ 219. Item nostri praeceptores 
quod ita legntum est nulla (alia) 
ratione putant posse consequi eum 
cui ita fuerit legatum, quam iudicio 
familiae erciscundae, quod inter 
heredes de hereditate erciscunda, 
id est diuidunda, accipi solet; officio 
enim iudicis id contineri, ut ei quod 
per praeceptionem legatum est, ad- 
iudicetur. " 

$220. Vnde intellegimus nihil 
aliud secundum nostrorum praecep- 
torum opinionem per praeceptionem 
legari posse nisi quod testatoris sit ; 
nulla enim alia res quam hereditaria 
deducitur in hoc iudicium. itaque 
$i non suam rem eo modo testator 
legauerit, iure quidem ciuili inutile 
erit legatum ; sed ex senatuscon- 
sulto confirmabitur. aliquo tamen 
casu etiam alienam rem ( per) prae- 
ceptionem legari posse fatentur; 
ueluti si quis eam rem legauerit 
quam creditori fiduciae causa man- 


DE LEGATIS. 


259 
takes something as legatee. 


$ 218. Therefore, if a stranger 
have a legacy in this form it is void, 
and Sabinus held that the flaw is 
not remedied by the senatusconsult 
of Nero, for that senatusconsult 
only cures verbal flaws which make 
a bequest informa] at civil law, not 
personal disabilities of the legatee. 
Julian, however, and Sextus held 
that this bequest also is made valid 
by the senatusconsult, as only being 
avoided at civil law by a verbal 
informality, as appears from the 
fact that the very same person 
might take by a bequest in another 
form, for instance, the form of per- 
mission, whereas personal disability 
of a legatee implies inability to 
take under any form, as that of an 
alien, who wants testamentifactio 
passiva, and is not relieved by the 
senatusconsult. 


§ 219. Again, my school hold 
that in this form of bequest, the 
only action by which a legatee can 
recover is the action for partition of 
an inheritance, the judge's commis- 
sion including a power of adjudi- 
cating a thing bequeathed by pre- 
ception. 


§ 220. From this it follows that, 
according to my school, nothing can 
be bequeathed by preception but 
what belongs to the testator, for 
nothing but the inheritance forms 
the subject of this action. If, then, 
a thing that does not belong to the 
testator is bequeathed in this form, 
the bequest is void at civil law, but 
made valid by the senatusconsult. 
In one case they admit that another 
person’s property may be bequeathed 
by preception, for instance, if a man 
bequeath a thing which he has con- 


8 2 


260 


cipio dederit; nam officio iudicis 
coheredes cogi posse existimant so- 
luta pecunia juere eam rem, ut 
possit praecipere ts cui ita legatum 
git. 


$ 221. Sed diuersae scholae auc- 
tores putant etiam extraneo per 
praeceptionem legari posse proinde 
ac Si ita scribatur TITIVS HOMINEM 
STICHVM CAPITO, superuacuo adiecta 
PRAE syllaba ; ideoque per uindica- 
tionem eam rem legatam uideri. 
quae sententia dicitur diui Hadriani 
constitutione confirmata esse. 


$ 222. Secundum hanc igitur 
opinionem si ea res ex iure Quiri- 


tium defuncti fuerit, potest a lega-— 


tario uindicari, siue is unus ex 
heredibus git siue extraneus; quodsi 
in bonis tantum testatoris fuerit, 
extruneo quidem ex senatusconsulto 
utile erit legatum, heredi uero fa- 
miliae erciscundae (iudicis officio 
praestabitur ; quodsi nullo iure 
fuerit testatoris, tam heredi quam 
extraneo ex senatusconsulto utile 
erit. 


$ 223. Siue tamen heredibus se- 
cundum nostrorum opinionem, siue 
eliam extraneis secundum illorum 
opinionem, duobus pluribusue eadem 
res coniunctim aut disiunctim legata 
fuerit, singuli partes habere debent. 


DE RERUM UNIVERSITATIBUS. [11. §§ 191-223. 


veyed by fiduciary mancipation to a 
mortgagee, as itis within the powers 
of the judge to order the coheirs to 
redeem the property by payment of 
ihe mortgage debt, and thus enable 
the legatee to exercise his right of 
preception. 

§ 221. The other school hold that 
a stranger may take a bequest in 
the form of preception just as if it 
were in the form: ‘ Let Titius take 
my slave Stichus, the addition [by 
preception, or, before partition | be- 
ing mere surplusage,and the bequest 
being in effect in the form of vindi- 
cation; and this opinion is said to 
be confirmed by a constitution of 
the late emperor Hadrian. 

$ 222. According to this view, if 
the thing was the Quiritarian pro- 
perty of the defunct, it can be 
recovered in a real action by the 
legatee, whether an heir or a stran- 
ger, but if it was only the boni- 
tarian property of the testator, a 
stranger will recover the bequest 
under the senatusconsult, an heir 
by the authority of the judge in an 
action for partition of inheritance. 
If it was in no sense the property 
of the testator, either an heir or a 
stranger may recover it under the 
senatusconsult. 

§ 223. Whether heirs, according 
to my school, or strangers, accord- 
ing to the other, if two or more 
legatees have the same thing be- 
queathed to them jointly or sever- 
ally, each legatee is only entitled 
to a ratable portion. 


§ 195. The testamentifactio passiva of municipalities, that is, 
their capacity as juristic persons to be made heirs or legatees, has 


already been noticed, 1 § 197—200, comm. 


§ 238, comm. 


§ 197. Senatusconsulto Neroniano cautum est ut quod minus 
pactis (aptis?) verbis legatum est perinde sit acsi optimo jure 
legatum esset: optimum autem jus legati per damnationem est, 
Ulpian, 24,11. ‘The senatusconsult of Nero provided that every 


1. §§ 191-223.] DE LEGATIS. 261 


inaptly worded bequest should be deemed to be expressed in the 
most favourable form: the most favourable form being by con- 
demnation." 

By this senatusconsult, A.D. 64, the four forms of legacy are not 
entirely abolished, but the importance of their distinctions is very 
much diminished. A legacy, by whatever form bequeathed, is 
heneeforth always recoverable, provided it could have been effec- 
tively bequeathed in any form. As Sc. Neronianum made Vin- 
dicatio transformable into Condemnatio, it made Praeceptio a 
species of Vindicatio, similarly transformable, and capable, there- 
fore, of conferring res aliena as well as res testatoris not only on 
heres but also on non-heres. A fortiori it made Permissio, a 
species of Condemnatio, capable of bequeathing res aliena. 

Subsequently a constitution of Constantine, Constantius, and 
Constans, A.D. 389, which, as we have already seen, abolished the 
necessity of sacramental terms in instituting an heir, dispensed 
with them also in the remaining testamentary dispositions: Et in 
postremis ergo judiciis ordinandis amota erit sollennium verborum 
necessitas, Cod. 6, 23, 15. In legatis vel fidei commissis neces- 
saria non sit verborum observantia, ita ut nihil prorsus intersit, 
quis talem voluntatem verborum casus exceperit aut quis loquendi 
usus effuderit, Cod. 6, 37, 21. * Legacies and trusts need no verbal 
formulas, and it is utterly immaterial, given the intention, in what 
grammatical form it is clothed, or in what idiom it is enounced :’ 
apparently a part of the same constitution. 

Three years afterwards, a constitution of Constantius and Con- 
stans abolished all legal formulas in the following terms: Juris 
formulae, aucupatione syllabarum insidiantes, cunctorum actibus 
penitus amputentur, Cod. 2, 58, 1. * Legal formulas, with snares 
in every syllable to make them treacherous, in every occasion are 
to be utterly abolished.' 

Finally, Justinian enacted ut omnibus legatis una sit natura, 
Inst. 2, 20, 2, that all bequeste should be of one nature; and 
allowed them to be recovered by personal or real action, at the 
option of the legatee; or, perhaps we should say, according to the 
exigencies of the case: for some subjects are essentially incapable of 
recovery by real action; e.g. if a determinate quantity of anything 
estimated by number, measure, or weight, were bequeathed by a 
testator who had none in his possession at the time of his death, 
the heir would be bound to procure and convey it or its value to the 


262 DE RERUM UNIVERSITATIBUS. [1 §§ 191-223. 


legatee, but there would be no specific thing in existence which the 
legatee could recover by real action. 

§ 199. Co-vindieatees would be each entitled to the whole except 
for the concurrence of the other co-legatees. Accordingly, if one 
fails the others benefit by Accretio. Co-damnatees in the same 
sentence are never entitled to more than a ratable portion, and 
failure of one benefits the heir: co-damnatees in separate sentences 
are entitled to as many wholes as there are co-legatees, $ 206. 
Co-permissees were a class of co-damnatees, but in disjunctive 
permission only the first occupant was entitled, $ 215. 

§ 207. The loss of the legacies which they otherwise would have 
acquired under the lex Papia, was one of the penalties whereby the 
legislator endeavoured to deter successors and legatees from under- 
taking secret trusts (fideicommissum tacitum) contrived for the 
purpose of evading some disqualification. In fraudem juris fidem 
accommodat, qui vel id quod relinquitur vel aliud tacite promittit 
restituturum se personae quae legibus ex testamento capere pro- 
hibetur, sive chirographum eo nomine dederit, sive nuda polli- 
citatione repromiserit, D. 84, 9, 10 (from a treatise of Gaius on the 
lex Julia et Papia). ‘A devisee lends his honour to the evasion of 
the law when, without a direction on the face of the will, he en- 
gages to transfer a devise or other property to some person legally 
disqualified for taking under a will, whether the engagement be by 
formal written contract or by naked verbal promise) In England 
secret trusts led to the passing of the statute of Uses and Trusts. 
At Rome secret trusts (on which Gaius wrote & treatise, D. 84, 9, 
23) were discouraged by being made one of the cases of Ereption 
for unworthiness, § 151. Si quis in fraudem tacitam fidem ac- 
commodaverit, ut non capienti fideicommissum restituat, nec 
quadrantem eum deducere senatus censuit, nec caducum vindicare 
ex eo testamento si liberos habeat, Ulpian, 25,17. ‘An heir who 
lends his assistance to the evasion of the law by the acceptance of 
a secret trust in favour of a disqualified beneficiary loses by decree 
of the senate his right under the lex Falcidia to retain one fourth 
of his inheritance, and to claim the escheated legacies, to which 
by the lex Papia he would have been entitled as a father of 
children.’ " 

§ 215. A passage in the Digest, 33, 2, 14, makes this depend 
on the intention of the testator. 


11. §§ 224-228. ] 


[AD LEGEM 


$ 224. Sed olim quidem licebat 
lotum patrimonium legatis atque 
libertatibus erogare nec quicquam 
heredi relinquere praeterquaminane 
nomen heredis; idque lex xii tabu- 
larum permittere uidebatur, qua ca- 
uetur, ut quod quisque de re sua 
testatus esset, id ratum haberetur, 
his uerbis YTI LEGASSIT SVAE BEI, 
ITA IVS ESTO. quare qui scripti 
heredes erant, ab hereditate se ab- 
stinebant, et idcirco plerique intes- 
tati moriebantur. 


$ 225. Itaque lata est lex Furia, 
qua, exceptis personis quibusdam, 
ceteris plus mille assibus legatorum 
nomine mortisue causa capere per- 
missum non est. sed et haec lex non 
perfecit quod uoluit; qui enim uerbi 
gratia quinque milium aeris patri- 
monium habebst, poterat quinque 
hominibus singulis millenos asses 
legando totum patrimonium ero- 


gare. 


$226. Ideo postea lata est lex 
Voconia, qua cautum est, ne cui 
plus legatorum nomine mortisue 
causa capere liceret quam heredes 
caperent. ex qua lege plane quidem 
aliquid utique heredes habere uide- 
bantur; sed tamen fere uitium si- 
mile nascebatur; nam in multas 
legatariorum personas distributo 
patrimonio poterat (testator) adeo 
heredi minimum relinquere, ut non 
expediret heredi huius lucri gratia 
totius hereditatis onera sustinere. 

$ 227. Lata est itaque lex Fal- 
cidia, qua cautum est, ne plus ei 
legare liceat quam dodrantem. ita- 
que necesse est, ut heres quartam 
partem hereditatis habeat. et hoc 
nunc iure utimur. 


$ 228. In libertatibus quoque 


AD LEGEM FALCIDIAM. 


263 


FALCIDIAM. | 


$ 224. By the ancient law a tes- 
tator might exhaust his whole es- 
tate by bequests and enfranchise- 
ments, and leave nothing to the 
heir but an empty title; and 
this privilege seemed granted by 
the Twelve Tables, which concede 
an unlimited power of testamentary 
disposition, in these terms: ‘A 
man's last directions respecting his 
property shall be enforced by the 
power of the state:' hence the per- 
Bons who were appointed heirs de- 
clined to accept the inheritance, and 
people commonly died intestate. 

$ 225. This led to the enactment 
of the lex Furia, whereby, excepting 
certain specified classes, a thousand 
asses was made the maximum that 
a legatee or donee in contempla- 
tion of death was permitted to 
take. This law, however, failed to 
accomplish its purpose, for a testa- 
tor with an estate of, say, five thou- 
sand asses, might leave to five le- 
gatees a thousand asses apiece, and 
strip the heir of the whole. 

§ 226. This occasioned the en- 
actment of the lex Voconia, provid- 
ing that no legatee or donee on 
condition of survivorship should 
take more than the heir. By this 
law, some portion at all events was 
secured to the heir, but, like the 
former, it could be defeated, for the 
multitude of legatees between whom 
a man distributed his estate might 
leave so little to the heir as to make 
it not worth his while to undertake 
the whole burden of the succession. 

$ 227. At last, the lex Falcidia 
was enacted, prohibiting the bequest 
of more than three fourths of an 
estate, in other words, securing for 
the heir one fourth of the inherit- 
ance, and this is the rule of law 
now in force. 

§ 228. The enfranchisement of 


264 DE RERUM UNIVERSITATIBUS. [x §§ 224-228. 


dandis nimiam licentiam conpescuit slaves was likewise kept within 

lex Fufia Caninia, sicut in primo limits by the lex Furia Caninia, as 

commentario rettulimus. mentioned in the first volume of 
these Institutions. 


§ 224. A slightly different form of this celebrated ordinance is 
given by the Auctor ad Herennium : Paterfamilias yti super familia 
pecuniave sua legaverit ita jus esto, 1, 18, 28; also Cic. de Invent. 
2, 50, 148. 

§ 225. The lex Furia testamentaria, supposed to,have been 
passed 183 s.c., although it imposed on the legatee who took more 
than a thousand asses a penalty of four times the amount of the 
excess, which was recoverable by manus injectio pura, 4 § 23, yet is 
instanced by Ulpian as & minus quam perfecta lex, because, though 
it imposed a penalty on the legatee, it did not invalidate the pro- 
hibited bequest. In a minus quam perfecta lex the legislator, 
instead of declaring invalid the disposition that he wished to dis- 
eourage, or conferring on the person burdened by such disposition 
a counter right (exceptio) whereby he might defeat the claim of 
the person who sought to enforce such disposition, merely imposed 
on the creditor under such a disposition a penalty if he either 
enforced his claim by suit or if he even accepted voluntary pay- 
ment from the person who stood in the relation of debtor. Minus 
quam perfecta lex est quae vetat aliquid fieri et si factum sit non 
rescindit sed poenam injungit ei qui contra legem fecit: qualis 
est lex Furia testamentaria quae plus quam mille assium legatum 
mortisve causa prohibet capere praeter exceptas personas, et ad- 
versus eum qui plus ceperit quadrupli poenam constituit, Ulpian, 
1, 2. So the lex Furia de sponsu, 3 $ 121, which perhaps was 
another clause of the enactment which contained the lex Furia 
testamentaria, imposed a penalty on the creditor who exacted more 
than a ratable portion of a guaranteed debt from a single sponsor, 
4§ 22. By the lex Falcidia, on the contrary, a lex perfecta which 
superseded the lex Furia testamentaria, a legacy was absolutely 
null and void (ipso jure) beyond a certain extent and the heres as 
debtor could not be forced to pay more than the sum prescribed, 
a rule which may be expressed by the maxim, legata ipso jure 
minuuntur: and the Epistola Hadriani, 8 $ 121, which similarly 
superseded the lex Furia de sponsu, conferred a counter right 
called Beneficium divisionis on the fidejussor or surety who was 
sued for more than a ratable portion of the debt, enabling him 


11. $$ 224-228. | AD LEGEM FALCIDIAM. . 265 


to defeat the valid claim of the creditor by the exceptio divi- 
sionis. Under the lex Furia testamentaria the heres could neither 
defend himself by alleging the absolute nullity of the exces- 
sve bequest (ipso jure) nor by alleging an opposing right 
(exceptio) whereby the valid claim of the legatee might be counter- 
acted. 4 § 115, comm. 

Assuming that the lex Furia de sponsu and the lex Furia tes- 
tamentaria were two clauses of the same enactment, the lex Furia 
has had the singular destiny of having provoked by antagonism 
the introduction of two new institutions in Roman jurisprudence. 
The desire of evading its penalties relating to sponsio probably 
was the origin of fidejussio; and the desire of evading its penalties 
relating to legata was probably a principal stimulus to the in- 
vention of fideicommissa. Ihering. 

The exceptae personae of the lex Furia testamentaria were the 
cognates of that ascendent by whom the testator, when filius- 
familias, had been emancipated, Ulpian, 28, 7. 

$ 226. 'The lex Voconia, supposed to have been passed by the 
tnbune Quintus Voconius Saxa, 169 B.c., contained & provision 
to the effect that a woman could not be instituted heiress to a 
clasaicus, or person scheduled in the first class of the census, 
i.e. registered as owner of property to the amount of a hundred 
thousand sesterces and upward, 2 $274; and another, mentioned 
in the text, whereby the utmost amount that any one, male or 
female, could take as legatee, would be limited to half the value of 
the inheritance. This disposition of the lex Voconia was probably 
the origin of the form of legacy called partitio, § 254, whereby 
a testator bequeathed as legacy an aliquot part of his inheritance. 
A testator with one heres would leave to a female legatee one half, 
with two heredes one third, of the inheritance, and so on, if he 
wished to leave her the utmost the law permitted. 

The result of the lex Voconia, coupled with the rules of preter- 
mission and intestacy, is the following: a daughter might take half 
her father's estate either as legatee (partiaria, $ 254) or, if preter- 
mitted (praeterita) as heiress, $ 124.. If she was filia unica, she 
might take the whole estate as heiress, if her father died intestate : 
but Romans were very averse to dying intestate; and in this event 
she would not have the free disposition of her property, as she 
would be the ward of her agmates. 

$ 227. The terms of the principal clause of the lex Falcidia, 


266 DE RERUM UNIVERSITATIBUS. (11. $$ 229-245. 


passed B.c. 40, are given in the Digest 35, 2, 1, pr. ‘Every Roman 
citizen who, after this law passes, makes a will, is entitled and 
empowered to give and bequeath whatever money to whatever 
citizen of Rome he desires in accordance with the laws of Rome, 
provided that such bequest leave at least one fourth of the inherit- 
ance to be taken under that will by the heirs. Such bequests the 
legatees are permitted to accept without penalty (an allusion to the 
penalty of the lex Furia), and the heir therewith charged is bound 
to pay.’ | 
. The words limiting the operation of the lex Falcidia to wills 
executed after the date of its enactment take this law out of the 
general rule respecting the temporal limits of the application of 
laws in the event of legislative innovations. The general rule for 
determining, on any change of the law, whether a given right is to 
be governed by the older or the newer law, is the principle that a 
new law has no retroactive influence on vested rights (acquired 
rights), but governs all that have yet to vest. Now under a will no 
one has vested rights, whatever his expectations, before the death of 
the testator. This date fixes the overture of the succession (vocatio 
heredis, delatio hereditatis), the vesting of the rights of the successor 
and also of the legatee (legatorum dies cedens, § 244), and deter- 
mines the law by which they are governed. By the general rule, 
then, the lex Falcidia would have applied to all wills whose testators 
died after its enactment, at whatever date they were executed. 
The legislator wished to disarm the opposition of those who had 
made their wills by excepting them from its operation; though in 
many cases the lex Falcidia would be less rigorous than the lex Furia 
and lex Voconia, which it superseded, and testators would be glad 
to revise their testamentary dispositions. Savigny, System, § 394. 
Some illustrations of the joint operation of the lex Falcidia and 
the Sc. Pegasianum, or rather the Sc: Trebellianum as modified by 
Justinian, will be presently given. § 259, comm. 


[DE INVTILITER RELICTIS LEGATIS. | 


. $229. Ante heredis institutionem $ 229. A legacy bequeathed be- 
inutihter legatur, scilicet quia tes- fore a successor is appointed is void, 
tamenta uim ex institutione heredis because a will derives its operation 
accipiunt, et ob id uelut caput et from the appointment of a suc- 
fundamentumintellegitur totius tes- cessor, and accordingly the appoint- 
tamenti heredis institutio. ment of & successor is deemed the 

beginning and foundation of a will. 


n$$229-245.] DE INUTILITER RELICTIS LEGATIS. 267 


$230. Pari ratione nec libertas 
ante heredis institutionem dari 
potest. 
$231. Nostri praeceptores nec 
tutorem eo loco dari posse existi- 
mani; sed Labeo et Proculus tu- 
torem posse dari, quod nihil ex 
hereditate erogatur tutoris datione. 


$ 232. Post mortem quoque he- 
redis inutiliter legatur, id est hoc 
modo CVM HERES MEVS MORTYVS 
ERIT, DO LEGO, aut DATO. ita au- 
tem recte legatur CVM HERES 
(MEVS) MORIETVE, quia non post 
mortem heredis relinquitur, sed 
ultimo uitae eius tempore. rursum 
ita non potest legari PRIDIE QVAM 
HERES MEVS MORIETVR; quod non 
pretiosa ratione receptum uidetur. 


$233. Eadem et de libertatibus 
dicta intellegemus. 

$234. Tutor uero an post mortem 
heredis dari possit quaerentibus 
eadem forsitam poterit esse quaes- 
tio, quae de (eo) agitatur qui ante 
heredum institutionem datur. 


DE POENAE CAVSA 


$ 235. Poense quoque nomine 
inutiliter legatur. poenae autem 
nomine legari uidetur quod co- 
ercendi heredis causa relinquitur, 
quo magis heres aliquid faciat aut 
non faciat ; ueluti quod ita legatur 
SI HERES MEVS FILIAM SVAM TITIO 
IN MATRIMONIVM CONLOCAVEBIT, X 
(XILIA) 8£10 DATO, uel ita 81 FI- 
LIAM TITIO IN MATRIMONIVM NON 
CONLOCAVERIS, X MILIA TITIO DATO; 
sed et si heredem, (si) uerbi gratia 
intra biennium monumentum sibi 
non fecerit, € (milia) Titio dare 


$ 230. For the same reason a 
slave cannot be enfranchised before 
& successor is appointed. 

$ 231. Nor, according to my 
school, can a guardian be nomin- 
ated before an heir is appointed : 
according to Labeo and Proculus he 
may, because no part of the inherit- 
ance is diverted from the heir by 
the nomination of a guardian. 

§ 232. A bequest to take effect 
after the death of the heir is void, 
that is to say, if limited in the 
following terms: ‘ After my suc- 
cessor's death I give and dispose,’ 
or, ‘let my successor give.’ The fol- 
lowing limitation is valid: ‘ When 
my heir dies,’ because the legacy is 
not to take effect after his death, 
but at the last moments of his life. 
A bequest to take effect on the day 
preceding the death of the successor 
is void. This distinction reposes on 
no valid reason. 

§ 233. The same rules apply to 
enfranchisements. 

§ 234. Whether a guardian can 
be nominated to begin his functions 
after the death of the heir, probably 
admits of the same divergence of 
opinion as whether he can be nomi- 
nated before the appointment of the 
heir. 


RELICTIS LEGATIS. 


§ 235. Penal bequests are void. 
A penal bequest is one intended to 
coerce the heir to some performance 
or forbearance. For instance, the 
following: ‘If my heir give his 
daughter in marriage to Titius, let 
him pay ten thousand sesterces to 
Seius:’ and the following: ‘If thou 
do not give thy daughter in marriage 
to Titius, do thou pay ten thousand 
sesterces to Titius:’ and the follow- 
ing: ‘If my heir does not, say, 
within two years build me a monu- 
ment, I order him to pay ten thou- 


268 


iusserit, poenae nomine legatum 
est; et deni|que ex ipsa definitione 
multas similes species —|—possu- 
mus. 

$ 236. Nec libertas quidem poe- 
nae|nomine dari potest, quamuis 
de ea re fuerit quaesitum. 

$ 237. De tutore uero nihil pos- 
sumus quaerere, quia non potest 
datione tutoris heres conpelli quic- 
quam facere aut non facere ; ideo- 
que ( ) datur, poenae nomine 
tutor datus fuerit, magis sub con- 
dicione quam poenae nomine datus 
uidebitur. 





§ 238. Incertae personae legatum 
inutiliter relinquitur. incerta autem 
uidetur persona quam per incertam 
opinionem animo suo testator subi- 
cit, uelut cum ita legatum sit QVI 
PRIMVS AD FVNVS MEVM VENERIT, 
EI HERES MEVS X (MILIA) DATO. 
idem iuris est si generaliter omni- 
bus legauerit QVICVMQVE AD FVNVS 
MEVM VENERIT. in eadem causa est 
quod ita relinquitur QVICVMQVE 
FILIO MEO IN MATRIMONIVM FILIAM 
SVAM CONLOCAVERIT, EI HERES 
MEVS X MILIA DATO. illud quoque 
[in eadem causa est] quod it relin- 
quitur QVI POST TESTAMENTVM 
(SCRIPTVM PRIMI) CONSVLES DE- 
SIGNATI ERVNT, aeque incertis per- 
sonis legari uidetur. et denique 
aliae multae huiusmodi species sunt. 
sub certa uero demonstratione in- 
certae personae recte legatur, ue- 
luti EX COGNATIS MEIS QVI NYNC 
SVNT QVI PRIMYS AD FVNVS MEVM 
VENERIT, EI X MILIA HERES MEVS 
DATO. 

$ 239. Libertas quoque non uide- 
tur incertae personae dari posse, 
quia lex Fufia Caninia iubet nomi- 
natim seruos liberari. 

$ 240. Tutor quoque certus dari 
debet. 

$ 241. Postumo quoque alieno 


DE RERUM UNIVERSITATIBUS. [m.$$229-245. 


sand sesterces to Titius ;' all these 
are penal bequests, and many simi- 
lar instances may be imagined in 
accordance with the definition. 

$ 236. Freedom cannot be left as 
& penal bequest, although the point 
has been disputed. 

$ 237. The nomination of a guar- 
dian cannot give rise tothe question, 
because thenominationof a guardian 
cannot be a means of compelling an 
heir to any performance or forbear- 
ance, and a penal nomination of a 
guardian is inconceivable: if, how- 
ever, & nomination were made with 
this design, it would be deemed 
rather conditional than penal. 

§ 238. A bequest to an uncertain 
person is void. An uncertain person 
is one of whom the testator has no 
certain conception, as the legatee in 
the following bequest: ‘ Whcever 
comes first to my funeral, do thou, 
my heir, pay him ten thousand ses- 
terces:’ or a whole class thus de- 
fined: ‘Whoever comes to my 
funeral:’ or a person thus defined: 
*Whoever gives his daughter in mar- 
riage to my son, do thou, my heir, 
pay him ten thousand sesterces:' or 
persons thusdefined : ‘Whoeverafter 
my willis made are the first consuls 
designate:' allthese persons are un- 
certain, and many others that might 
be instanced. A bequest to an un- 
certain member of a certain class is 
valid, as the following: ‘Of all my 
kindred now alive whoever first 
comes to my funeral, do thou, my 
heir, pay him ten thousand ses- 
terces.' 


$ 239. Freedom cannot be be- 
queathed to an uncertain person be- 
cause the lex Fufia Caninia requires 
slaves to be enfranchised by name. 

$ 240. Án uncertain person can- 
not be nominated guardian. 

$ 241. An afterborn stranger can- 


u. § 229-245.]| DE POENAE CAUSA LEGATIS. 


inutiliter legatur. (st) autem 
alienus postumus qui natus inter 
suos heredes testatori futurus non 
est. ideoque ex emancipato quoque 
filio conceptus nepos extraneus pos- 
tumus est ; item qui in utero est 
eius quae ture ciuili non intellegi- 
tur uxor, extraneus postumus patris 
intellegitur. 

$ 242. Ac ne heres quidem potest 
institui postumus alienus; est enim 
incerta persona. 

$ 243. Cetera uero quae supra 
diximus, ad legata proprie pertinent. 
quamquam non inmerito quibus- 
dam placeat poenae nomine heredem 
institui non posse; nihil enim inter- 
est, utrum legatum dare iubeatur 
heres, si fecerit aliquid aut non 
fecerit, an coheres ei adiciatur, quia 
tam coheredis adiectione quam le- 
gati datione conpellitur, ut aliquid 
coutra propositum suum faciat aut 
non faciat. 

$ 244. An ei qui in potestate 
sit eius quem heredem instituimus, 
recte legemus quaeritur. Seruius 
recte legari putat, sed euanescere 
legatum, si quo tempore dies lega- 
torum cedere solet, adhuc in potes- 
late sit ; ideoque siue pure legatum 
ait et uiuo testatore in potestate 
heredis esse desierit, siue sub con- 
dicione et ante condicionem id acci- 
derit, deberi legatum. Sabinus et 
Cassius sub condicione recte legari, 
pure non recte, putant; licet enim 
uiuo testatore possit desinere in po- 
testate heredis esse, ideo tamen in- 
utile legatum intellegi oportere, quia 
quod nullas uires habiturum foret, 
st statim post testamentum factum 
decessisset, testator, hoc ideo ualere, 
quia uitam longius traxerit, absur- 
dum esset. sed diuersae scholae 
auctores nec sub condicione recte 
legari, quia quos in potestate habe- 
mus, eis non magis sub condicione 
quam pure debere possumus. 


269 


not take a bequest: an afterborn 
stranger is one who on his birth 
will not be a self-successor to the 
testator: thus & grandson by an 
emancipated son is an afterborn 
stranger to his grandfather, and a 
child in the womb of one who is not 
& wife by civil wedlock is an after- 
born stranger to his father. 

$ 242. An afterborn stranger can- 
not even be appointed heir, because 
he is an uncertain person. 

$ 243. Though what was said 
above of penal dispositions refers 
properly to bequests, yet a penal 
appointment of an heir is justly 
considered to be void, for it makes 
no difference whether a legacy is 
left away from an heir on his doing 
or failing to do something, or a co- 
heir is appointed, as the addition of 
a coheir is just as effective a means 
of coercion to force an heir to take 
some step against his will. 

§ 244. Whether a person in the 
power of an heir can be the donee 
of a legacy is a question. Servius 
holds that the bequest is valid, 
though it lapses if he continue 
under power at the date when the 
legacies vest ; and whether the be- 
quest is absolute and the legatee 
ceases to be subject to the power of 
the heir in the lifetime of the tes- 
tator, or whether it is conditional 
and he is hberated before the con- 
dition is accomplished, in either case 
he holds the legatee entitled to the 
legacy. Sabinus and Cassius hold 
that a conditional bequest is valid, 
an absolute bequest invalid, because 
though the legatee may cease to be 
subject to the heir in the lifetime of 
the testator, yet the bequest must 
be deemed invalid because a dis- 
position which would be void if the 
testator died immediately after 
making his will, cannot acquire 
validity by the mere prolongation 
of his life. The other school of 





270 


$ 245. Ex diuerso constat ab eo 
qui in potestate (twa) est, herede 
instituto recte tibi legari ; sed si tu 
per eum heres extiteris, euanescere 
legatum, quia ipse tibi legatum 
debere non possis; si uero filius 
emancipatus aut seruus manumissus 
erit uel in alium translatus, et ipse 
heres extiterit aut alium fecerit, 
deberi legatum. 


DE RERUM UNIVERSITATIBUS. [m.$$ 229-245. 


jurists hold that even a conditional 
bequest is invalid because a person 
under power is as incapable of con- 
ditional as of absolute rights against 
his superior. 

§ 245. Conversely it is certain 
that if a person in your power is 
appointed heir, he can be charged 
with payment of a legacy to you; 
though if you inherit by his means 
the legacy fails, because you cannot 
be bound to pay yourself; but if 
your son is emancipated, or your 
slave manumitted or aliened, and 
himself becomes successor or makes 


the alienee successor, you are en- 
titled to the legacy. 


§ 237. The rules requiring that bequests should follow the insti- 
tution of the heir, and should be limited to take effect in the life- 
time of the heir, and prohibiting penal bequests, were abolished by 
Justinian. 

§ 238. Justinian abolished the rule prohibiting bequests to un- 
certain persons, Cod. 6, 48. Corporations or Universitates are 
certae personae, not incertae as we might imagine from their men- 
tion in this constitution. But though, as juristic persons, they 
were capable in general of property, yet originally, perhaps from 
a feeling of the impolicy of the principle of Mortmain, they were 
incapable of taking either hereditas or legatum. Leo, a.p. 469, had 
made municipalities capable of taking successions (hereditas), and 
probably by the constitutions of Nerva and Hadrian all juristic 
persons had become capable of taking bequests (legatum). By 
Justinian’s constitution, Cod. 6, 48, other Universitates as well 
as Municipalities would become capable of taking successions. 
Savigny, § 85. 1 § 197-§ 200, comm. 

§ 242. Although an after-born stranger could not be appointed 
heir by the civil law, yet the praetor sustained such an appoint- 
ment, and gave him the bonorum possessio. Justinian permitted 
him to take the legal estate, Inst. 8, 9, pr. After Justinian’s 
legislation, Cod. 6, 48, all that remained of the once important 
disqualification of incerta persona was the rule, that a succession, 
testamentary or intestate, could not belong to a postumus alienus, 
unless he was begotten (conceptus) in the lifetime of the heritage- 
leaver. Vangerow, § 411, § 429. 


11. §§ 246-259.] DE POENAE CAUSA LEGATIS. 271 


§ 244. Dies cedens, or the delation of a legacy, dates from the 
death of the testator: dies veniens, the acquisition of a legacy, 
dates from aditio of the heres. It does not require acceptance or 
even notice of the legacy. In reference to obligations these terms 
mean the date when an obligation vests and the date when pay- 
ment may be exacted. On dies cedens an obligation is acquired : 
it forms part of the creditor’s patrimony, and is capable of novation, 
cession, acceptilation : on dies veniens or actio nata, payment may 
be exacted and is recoverable by suit. The distinction between dies 
cedens and dies veniens in obligations arises when & dies adjecta 
is contained in the lex contractus. 

A nght to a conditional legacy vested when the condition was 
accomplished. Herein a conditional legacy differs from a conditional 
contract. A fulfilled condition of a contract or promise is retracted 
to the date of the promise: i.e. the obligation of the promissor and 
the right of the promissee date from the conclusion of the contract 
as if it had been originally unconditional. Though an unconditional 
legacy was liable to be defeated by the heres declining the inherit- 
ance, or the will from any other cause failing of operation, yet, as 
soon as the validity of the will was ascertained by the aditio of the 
heres, the vesting of an unconditional legacy dated back from the 
death of the testator. 

One of the Catos was the author of & maxim, that to test the 
validity of a legacy we must examine whether it would be valid 
if the testator died immediately after executing his will. This 
was called regula Catoniana, Dig. 84, 7, 1. The retroactive effect 
of the removal of an original impediment to the validity of a title 
is called the Convalescence of the title. Accordingly, Cato's rule 
may be described as a rule denying the Convalescence of legacies. 
Cato's rule, however, was only a criterion of the validity of uncon- 
ditional bequests ; the validity of conditional bequests can only be 
tested when the condition is aecomplished. Accordingly, of the 
three opinions mentioned in this paragraph, that of Sabinus is 
to be regarded as sound, and is so treated by Justinian, Inst. 2, 
20, 32. 


DE FIDEICOMMISSARIIS HEREDITATIBUS. 


$246. Nunc transeamus ad fidei- $ 246. We now proceed to trusts. 
commissa. 

$ 247. Et prius de hereditatibus $ 247. And to begin with trust 
uideamus. successions : 











272 


§ 248. Inprimis igitur sciendum 
est opus esse, ut aliquis heres recto 
iure instituatur eiusque fidei com- 
mittatur, ut eam hereditatem alii 
restituat; alioquin inutile est tes- 
tamentum, in quo nemo recto iure 
heres instituitur. 

$ 249. Verba autem [utilia ] fidei- 
commissorum haec [recte] maxime 
in usu esse uidentur PETO, ROGO, 
VOLO, FIDEI COMMITTO ; quae proinde 
firma singula sunt, atque si omnia 
in unum congesta sint. 

$ 250. Cum igitur scripserimus 
(L.) TITIVS HERES ESTO, possumus 
adicere ROGO TE L. TITI PETOQVE A 
TE, VT CVM PRIMVM POSSIS HERE- 
DITATEM MEAM ADIBE, C. SEIO RED- 
DAS RESTITVAS. possumus autem 
et de parte restituenda rogare; et 
liberum est uel sub condicione uel 
pure relinquere fideicommissa, uel 
ex die certa. 


$ 251. Restituta autem heredi- 
tate is qui restituit nihilo minus 
heres permanet ; is uero qui recipit 
hereditatem, aliquando heredis loco 
est, aliquando legatarii. 

$ 252. Olim autem nec heredis 
loco erat nec legatarti, sed potius 
emptoris. tunc enim in wsu erat 
ei cui restituebatur hereditas, num- 
mo uno eam hereditatem dicis causa 
uenire; et quae stipulationes (tnter 
uenditorem hereditatis et emptorem 
tnterpont solent, eaedem. interpone- 
bantur) inter heredem et eum cui 
restituebatur hereditas, id est hoc 
modo: heres quidem stipulabatur 
&b eo cui restituebatur hereditas, 
ut quidquid hereditario nomine 
condemnatus soluisset, siue quid 
alias bona fide dedisset, eo nomine 
indemnis esset, et omnino si quis 
cum eo hereditario nomine ageret, 
ut recte defenderetur ; ille uero qui 
recipiebat hereditatem, inuicem sti- 
pulabatur, ut si quid ex hereditate 
ad heredem peruenisset, id sibi re- 


DE RERUM UNIVERSITATIBUS. [1.$$246-259. 


$ 248. The first requisite is a 
legal successor in the first instance 
in trust to transfer the succession 
to another, for the will is void 
without a legal successor in the first 
instance. 


$ 249. The words properly and 
commonly used to create a trust 
are: ‘I beg, I request, I wish, I 
intrust;’ and they are just as bind- 
ing separately as united. 


$ 250. Accordingly, when we 
have written: ‘ Lucius Titius, be 
thou my heir,’ we may add: ‘I 
request and beg thee, Lucius Titius, 
as soon as thou canst accept my 
inheritance, to convey and transfer 
it to Gaius Seius;’ or we may re- 
quest him to transfer a part. Soa 
trust may be either conditional or 
absolute, and to be performed either 
immediately or on a future day. 

§ 251. After the transfer of the 
inheritance the transferror continues 
heir, the transferree being sometimes 
quasi heir, sometimes quasi legatee. 


§ 252. Formerly he became nei- 
ther quasi heir nor quasi legatee 
but quasi purchaser. In those times 
it was customary for the transferree 
to pay a sesterce as fictitious pur- 
chaser of the inheritance, and the 
stipulations appropriate to a vendor 
and purchaser of an inheritance 
were entered into by the heir and 
transferree, that is to say, the heir 
stipulated from the transferree to be 
indemnified for any sums he should 
be condemned to pay or should in 
good faith pay on account of the 
inheritance, and to be adequately 
defended in any suit on account of 
the inheritance; and the transferree 
on the other hand stipulated to re- 
ceive from the heir all profits aris- 
ing from the inheritance and to be 
permitted to sue as cognitor or 


1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS. 


stitueretur, ut etiam pateretur eum 
hereditarias actiones procuratorio 
aut cognitorio nomine exequi. 

$ 253. Sed posterioribus tem- 
poribus Trebellio Maximo et Annaeo 
Seneca consulibus senatusconsultum 
factum est, quo cautum est, ut si cui 
hereditas ex fideicommissi causa re- 
stituta sit, actiones quae iure ciuili 
beredi et in heredem conpeterent, 
(ei) et in eum darentur cul ex 
fideicommisso restituta esset here- 
ditas. per quod senatusconsultum 
desierunt illae cautiones in usu ha- 
beri praetor enim utiles actiones 
ei et in eum qui recepit hereditatem, 
quasi heredi et in heredem dare 
coepit, eaeque in edicto proponun- 
tur 


$254. Sed rursus quia heredes 
acripti cum aut totam hereditatem 
aut paene totam plerumque resti- 
tuere rogabantur, adire hereditatem 
ob nullum aut minimum lucrum 
recusabant, atque ob id extingue- 
bantur fideicommissa, postea Pe- 
gaso et Pusione (consulibus) sena- 
tus censuit, ut ei qui rogatus esset 
hereditatem ^ restituere, proinde 
liceret. quartam partem retinere, 
aique e lege Falcidia in legatis 
retinere, conceditur. (ex singulis 
quoque rebus quae per fideicom- 
missum relincuntur, eadem retentio 
permissa est.) per quod senatus- 
consultum ipse (heres) onera here- 
ditaria sustinet. ille autem qui ex 
fideicommisso reliquam partem he- 
reditatis recipit, legatarti partiarü 
loco est, id est eius legatari cui pars 
bonorum legatur; quae species legati 
partitio uocatur, quia cum herede 
legatarius partitur hereditatem. 
unde effectum est, ut quae solent sti- 
pulationes inter heredem et partia- 
rum legatarium interponi, eaedem 
interponantur inter eumqui ex fidei- 
commissi causa recipit hereditatem, 
et heredem, id est ut et lucrum et 
damnum hereditarium pro rata 
parte inter eos commune sit. 


273 


procurator of the heir. 


§ 253. In more recent times, in 
the consulate of Trebellius Maximus 
and Annaeus Seneca, a senatuscon- 
sult was passed providing that, 
when an inheritance is transferred 
in pursuance of a trust, the actions 
which the civil law allows to be 
brought by the heir or against the 
heir shall be maintainable by the 
transferree and against the trans- 
ferree. Hence the old covenants 
were discontinued, and the Praetor 
used to give to and against the 
transferree as quasi heir the in- 
direct [4 $ 34] or fictitious actions 
which are formulated in the album. 

$ 254. However, ss heirs, when 
made trustees to transfer the whole 
or nearly the whole of a succession, 
declined for a small benefice or no 
benefice to accept the succession, 
and this caused a failure of the 
trusts, the senate in the consulship 
of Pegasus and Pusio decreed, that 
8 devisee in trust to transfer a suc- 
cession should have the same right 
to retain a fourth of the succession 
as the lex Falcidia gives to an heir 
charged with the payment of lega- 
cies; and gave a similar right of 
retaining thé fourth of any specific 
thing left in trust. When this 
senatusconsult comes into operation, 
the heir is sole administrator and 
the transferree of the residue is on 
the footing of a partiary legatee, 
that is, of a legatee of a certain part 
of the estate under the kind of legacy 
called participation. Accordingly 
the stipulations appropriate between 
an heir and partiary legatee are 
entered into by the heir and trans- 
ferree, in order to secure a ratable 
division of the gains and losses. 
arising out of the succession. 





274 


§ 255. Ergo siquidem non plus 
quam dodrantem hereditatis scrip- 
tus heres rogatus sit restituere, tum 
ex Trebelliano senatusconsulto re- 
stituitur hereditas, et in utrumque 
actiones hereditariae pro rata parte 
dantur, in heredem quidem iure 
ciuili, in eum uero qui recipit he- 
reditatem, ex senatusconsulto Tre- 
belliano. quamquam heres etiam 
pro ea parte quam restituit, heres 
permanet, eique et in eum solidee 
actiones conpetunt; sed non ulter- 
ius oneratur nec ulterius illi dan- 
tur actiones, quam apud eum com- 
modum hereditatis remanet. 

$ 256. At si. quis plus quam do- 
drantem uel etiam totam heredita- 
tem restituere rogatus sit, locus est 
Pegasiano senatusconsulto. 

§ 257. Sed is qui semel adierit 
hereditatem, si modo sua uoluntate 
adierit, siue retinuerit quartam 
pertem siue noluerit retinere, ipse 
uniuersa onera hereditaria sustinet ; 
sed quarts quidem retenta quasi 
partis et pro parte stipulationes 
interponi debent tamquam inter par- 
tiarum legatarium et heredem ; si 
uero totam hereditatem restituerit, 
&d exemplum emptae et uenditae 
hereditatis stipulationesinterponen- 
dae sunt. 

$ 258. Sed. si recuset scriptus 
heres adire hereditatem ob id quod 
dicat eam sibi suspectam esse quasi 
damnosam, cauetur Pegasiano sena- 
tusconsulto, ut desiderante eo cui 
restituere rogatus est, iussu prae- 
ioris adeat et restituat, proindeque 
ei et in eum qui receperit (Aere- 
ditatem), actiones dentur, &c iuris 
est, ex senatusconsulto Trebelliano. 
quo casu nullis stipulationibus opus 
est, quia simul et huic qui restituit 
securitas datur, et actiones here- 
ditariae ei et in eum transferuntur, 
qui receperit hereditatem, 

$ 259. Nihil autem interest, 
utrum aliquis ex asse heres institu- 


DE RERUM UNIVERSITATIBUS. [11.§§ 246-259. 


$ 255. But if no more than three 
fourths of the inheritance is in trust 
to be transferred, then the Sc. Tre- 
bellianum governs the transfer, and 
both are liable to be sued for the 
debts of the inheritance in ratable 
portions, the heir by civil law, the 
transferree by the Sc. Trebellianum : 
for though the heir even as to the 
transferred portion continues heir, 
and can sue or be sued for the 
totality of a debt, in practice the 
praetor only allows bim to sue or 
be sued in the proportion of his be- 
neficial interest in the inheritance. 


§ 256. If more than three fourths 
or the whole is devised in trust to 
be transferred, the Sc. Pegasianum 
comes into operation. 

$ 257. And when once the heir 
has accepted, that is to say, volun- 
tarily, whether he retains one fourth 
or declines to retain it, he is sole 
administrator: but, if he retains a 
fourth, he should covenant with the 
transferree as quasi partiary le- 
gatee ; if he transfers the whole, he 
should covenant with him as quasi 
vendee, 


§ 258. If an heir refuse to accept 
& succession from a suspicion that 
the liabilities exceed the assets, it 
is provided by the Sc. Pegasianum, 
that on the request of the transferree 
he shall be ordered by the Praetor to 
accept and transfer; whereupon the 
transferree shall be just as capable 
of suing and being sued as the trans- 
ferree under the Sc. Trebellianum. 
In this case no stipulations are ne- 
cessary, because the transferror is 
protected, and the hereditary ac- 
tions pass to and against the trans— 
ferree. 

§ 259. It makes no difference 
whether a sole heir or a part heir 


1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS. 275 


ius aut totam hereditatem aut pro is under a trust to transfer, for a 
parte restituere rogetur, an ex part heir is entitled under the Sc. 
parte heres institutus aut totam  Pegasianum to retain a fourth of 
eam partem aut partis partem re- his part, | 

stituere rogetur ; nam et hoc casu de 

quarta parte eius partis ratio ex Pe- 

gasiano senatusconsulto haberi solet. 


§ 246, The dispositions of a testator which have been hitherto 
considered were directions addressed to his successor, resembling 
the orders of a father to his son or of a master to his slave, or the 
commands of a magistrate to his subordinate or of the state to its 
members, Hence the importance of the regular institution of a 
successor, of finding a person who, being a mere creature of the 
testator’s, shall be compelled to execute his commands. 

Fideicommissa, to which we now proceed, are not commands, but 
requests, Legatum est quod legis modo, id est, imperative, testa- 
mento relinquitur, nam-.ea quae precativo modo relinquuntur fidei- 
commissa vocantur, Ulpian, 24,1. ‘A legacy is a legislative or 
imperative testamentary disposition: a precative disposition (a 
disposition in the form of entreaty) is a trust.’ 

The original object of trusts was to extend the testator’s. bounty 
to those who were legally incapacitated to be legatees; for in- 
stance, aliens and Latini Juniani; for though Hadrian - subse- 
quently incapacitated aliens for taking the benefit of a trust, yet, 
as declarations of trust were exempt from many other restrictions 
which hampered direct devises, they survived the circumstance 
which was the principal motive of their introduction. For in- 
stance, another object of the declaration of trusts was to avoid 
the restrictions imposed by the lex Falcidia on the amount of 
legacies bequeathable to legatees who were capable of taking 
(had capacitas as well as testamentifactio passiva), § 254, and 
this object would continue to operate as a motive for the employ- 
ment of trusts even after the invalidation of trusts in favour of 
peregrini. 

That trusts had originally no legal validity, we see from Cicero, 
Verres, 2, 1, 47, where we learn that it} was usual for the testator 
to make the successor take an oath to perform the testator's 
wishes, thus supplying by religious motives the want of a poli- 
tical sanction. But Augustus, as we are informed by Justinian, 
Inst. 2, 23, in some individual cases of breach of trust directed 

T 4 








276 DE RERUM UNIVERSITATIBUS. [m.$$ 246-259. 


the consuls to interpose their authority and compel trustees to 
execute their charge; and trusts soon became an ordinary mode 
of testamentary disposition, and, in process of time, a permanent 
fiduciary jurisdiction was established, the court of the praetor 
fideicommissarius. 

Originally if a testator wished to leave to a certain person the 
net amount of his fortunes, unsaddled with the burden of admin- 
istration, he instituted another as heres, whose sole function was 
the satisfaction of creditors and the discharge of the other duties of 
administration : and bequeathed the net residue of his patrimony 
to the real object of his bounty as legatee (legatarius) When 
this course was restricted by the lex Falcidia, a testator who wished 
& certain donee to receive the whole of his patrimony free from 
burdens would institute another person as heres, subject to a trust 
to transfer the whole of the inheritance, after payment of debts 
and with some remuneration for his trouble, to the beneficiary 
donee (fideicommissarius). At first the testator could only rely 
on the honour of the heres, for these trusts were not legally bind- 
ing; and not long after they became legally binding they were 
subjected by Sc. Pegasianum to the same restrictions as were im- 
posed on legacies. Sc. Trebellianum made the cestui que trust 
heres or heredis loco, i.e. not liable to the Faleidian abatement. 
Se. Pegasianum, to subject him to this abatement, made him 
legatarius. Thus the advantage of having a disinterested Exe- 
eutor, of leaving the testator's wishes to be carried into effect by 
& person not, like the successor or legatee, interested in delayed or 
inequitable distribution ; an advantage which an English testator 
may, if he chooses, secure, was deliberately sacrificed by the Roman 
legislator. 

Another method of leaving to a person the net value of an 
inheritance without the troubles of administration, viz. the insti- 
tution of the slave of the devisee, has already been noticed. 
$ 189, Comm. 

The conversion of a moral into a political obligation by the 
legalization of trusts, was similar to what occurred when the 
Twelve Tables gave legal force to the nuncupation declaring the 
conditions and purposes of a mancipation; and, remembering 
the celebrated ordinance, Cum nexum faxit mancipiumque, uti 
lingua nuncupassit, ita jus esto, it may occur to us to wonder 
why Augustus did not imitate the energetic brevity of the ancient 


11. §§ 246-259.] DE FIDEICOMM. HEREDITATIBUS. 277 


legislator, and simply enact, Cum testamentum faxit codicillosve, 
uti fideicommiserit, ita jus esto. There would then have been no 
need of the cumbrous machinery of fictitious sales and stipulations 
between quasi vendor and quasi vendee; but a little reflection will 
show that such an enactment would have operated very incon- 
veniently, and have defeated the very purposes for which trusts 
were instituted. Such an enactment would have made trusts, 
hke nuncupations, a matter of civil law; and the jus strictum of 
the civil law was far from elastic or rational even in the time 
of Augustus; so that, if it was intended to enlarge the powers of 
testators and the discretion of the fiduciary tribunal, it was abso- 
lately necessary to make trusts a province not of legal but of 
equitable jurisdiction. 

§ 251. The transferree, it will be seen, was quasi heir when the 
Se. Trebellianum applied: when the Sc. Pegasianum applied he 
was either quasi legatee or quasi vendee. 

§ 252. These stipulations were necessary because emptio-venditio 
produced no universal succession, i.e. could only transfer the cor- 
pora, not the obligationes. But after Antoninus Pius these stipu- 
lations were not required in case of an emptio hereditatis, for, 
Reseriptum est a Divo Pio utiles actiones emptori hereditatis 
dandas. D. 2, 14, 16. 

$ 253. The terms of the Sc. Trebellianum, passed in the reign of 
Nero, a.p. 62, are given in the Digest 81, 1, 2. * Forasmuch as 
equity requires that whenever a succession is devised in trust, any 
actions arising thereout should be brought against the transferree 
of the suecession and its benefits, and that the devisee should incur 
no risk in consequence of his trust; it is decreed that the actions of 
and against an heir, shall not be granted to or against an heir who 
transfers a succession in pursuance of a trust, but to and against 
the testamentary transferree, in order that in future the last wishes 
of testators may have more effect.’ It is strange that the lawgiver 
should have stooped to the use of fiction (actio utilis) the natural 
instrument of a magistrate timidly usurping legislative power. 
Bethmann-Hollweg § 96, suggests that the actio utilis was not 
actio fictitia but actio in factum concepta. 

$ 254. By the Sc. Trebellianum, if the whole beneficial interest 
in an inheritance was transferred, the whole right of suing and 
being sued passed to the transferre: if only a portion of the bene- 
ficial interest was transferred, both the transferror and the trans- 


278 DE RERUM UNIVERSITATIBUS. [x1 §§ 246-259, 


ferree could sue and be sued in the same proportion. The Sc. 
Pegasianum, passed in the reign of Vespasian, A.D. 70-76, appa- 
rently provided that when less than a fourth of the inheritance is 
left to the benefit of the heir, the Se. Trebellianum should be 
inoperative, that is to say, that in such a case the actions by or 
against the inheritance shall not be maintainable by or against 
both the heir and transferree in the proportion of their interests, 
but should be exclusively maintainable by or against the heir. In 
fact, having subjected the transferree to the liability of abatement 
which the lex Falcidia imposed on the legatee, it seemea logical to 
put him in all other respects on the footing of a legatee, including 
the immunity from being sued and incapacity of suing for the 
debts of the succession. Having thus made the heir sole adminis- 
trator, in order to enable the heir to transfer the transferree’s 
portion at once, and to protect both the heir and the transferree 
against erroneous computation of the amount to be transferred, 
the Se. Pegasianum directed the heir and transferree to enter into 
the covenants usual between an heir and a partiary legatee. The 
heir promised, in the event of an underestimate, to make an ad- 
ditional payment; and the transferree promised, in the event of 
an overestimate, to make a proportional repayment. A partiary 
legatee is a legatee by partition, which Theophilus calls a fifth 
form of legacy, and of which Ulpian gives the formula, 24, 25. 
‘As single things can be bequeathed, so can a universality, for 
instance thus: Do thou, my heir, partition and divide my inherit- 
ance with Titius; in which case a moiety is deemed to be be- 
queathed, but any other part, a third or fourth, may be bequeathed, 
and this form of bequest is called partition This form of legacy 
probably owed its origin to the lex Voconia, § 226, which forbade 
Classicus to make an heiress. 

§ 257. It is therefore not true, as might be inferred from § 254, 
that the stipulations between quasi vendor and quasi vendee were 
entirely discontinued. The reason why these obsolete covenants 
again became necessary is probably because the Sc. Pegasianum, 
having abrogated the Sc. Trebellianum in all cases where less than 
a fourth of the inheritance is left to the heir, had omitted to declare 
what mutual securities were proper to be taken by the heir and 
transferree, in case the heir declined to avail himself of his right 
to retain a fourth. 


Modestinus suggested another course. He held that if the heir 


m. §§ 246-259.] DE FIDEICOMM. HEREDITATIBUS. 279 


declined to avail himself of his right, and transferred the whole 
inheritance, there was no need of any stipulations, as the Sc. Tre- 
bellianum would then apply. However he thought the point 
doubtful, for he recommended that the heir should feign unwil- 
lngness to accept a damnosa hereditas, and should make a com- 
pulsory acceptance by the order of the praetor, in which case the 
actions are transferrred in totality to the transferree by the express 
provision of the Sc. Pegasianum, Dig. 36, 1,45. The sequence 
of §§ 257, 258 seems to indicate an intention of Gaius to suggest 
that this course might be adopted. 

§ 258. The requirement for form’s sake of a compulsory aditio 
and restitutio, instead of ‘making the hereditas vest immediately 
under the will in the fideicommissarius (the course pursued by the 
legislator in the English statute of Uses and Trusts), has already, 
1 $ 190, been noticed as characteristie of Roman jurisprudence. 
It had this inconvénience, that it permitted the trusts to be defeated 
by the death or absence, malicious (dolo malo) or involuntary, of 
the heres or fiduciarius. No remedy was provided for this con- 
tingency till the time of Justinian, who enacted that in such a 
ease the inheritance should vest in the fideicommissarius by mere 
operation of law (ipso jure) by means of a fiction of aditio and 
restitutio, a fiction introduced, as evidenced by the term actio 
utilis, into the remedy of the cestui que trust. Sancimus itaque 
ut sive per contumaciam abfuerit is cui restitutio imposita est, 
sive morte praeventus nullo relicto stecessore fuerit, sive a primo 
fideicommissario in secundum translatio celebrari jussa est, ipso 
jure utiles actiones transferantur, Cod. 6, 49, 7. * Be it enacted, that 
on the contumacious absence or death unsucceeded of a fiduciarius 
or of a first fideicommissarius charged in favour of a second, the 
law iteelf operate a transfer of fictitious actions from such persons 
to the cestui que trust.’ 

§ 259. The stipulations of the transferree as quasi vendee or 
quasi partiary legatee introduced by the Sc. Pegasianum were not 
only a cumbrous machinery, but after all afforded an insufficient 
security to the parties. 'The heir and transferree were always in 
mutual danger of one another's insolvency, and an heir after trans- 
ferring the whole inheritance, though not fairly liable to any 
molestation or vexation on account of it, might find himself with 
two lawsuits on his hands: he might first be sued by the creditors 
of the estate, and then have to recover back what he is condemned 





280 DE RERUM UNIVERSITATIBUS. [n. §§ 246-259. 


to pay them from the transferree by suing him on the covenants of 
quasi vendor and quasi vendee. 

It is not surprising therefore, that J ustinian abolished these 
provisions of the Sc. Pegasianum, and enacted that in every case 
there shall be a transfer or division of actions as contemplated by 
the Se. Trebellianum, i.e. that the actions by or against the in- 
heritance shall either be transferred in totality to the transferree, 
or be maintainable by or against both the heir and the transferree 
in the proportion of their interests. See Inst. 2, 23. 

The following observations may serve to complete the explana- 
tion of the Sc. Trebellianum and the Sc. Pegasianum. 

Succession is the transfer of a right from one person (auctor) to 
another person (successor), such as occurs, for instance, in the volun- 
tary alienation of property. Here the same dominion that was 
previously exercised by the alienor is subsequently exercised by 
the alienee. "The right continues the same; the person invested 
therewith is changed. It was characteristic of jus in personam or 
obligation (before, at least, the invention of papers payable to the 
holder and transferable by delivery) that it was not capable of 
a similar alienation. All that could be done to accomplish a similar 
result was to employ one of two cumbrous processes, Novation or 
Cession of Action (Procuration) 2 $ 38. 3 §§ 155-162 comm. 
In these procedures there is no Succession, for in Novation the 
transferree is not invested with the same right that previously vested 
in the transferror, but a new right is created in the transferree while 
the old right of the transferror is extinguished : and in Procuration 
or Cession the right still continues vested in the transferror, who 
allows the transferree to recover it or enforce it by action and retain 
the fruits of the recovery. 

This inalienability of obligations, however, was confined to 
SINGULAR successions (in singularum rerum dominium successio): 
UNIVERSAL succession (per universitatem successio) or the trans- 
mission of the ideal whole of a patrimony, of which we 
have an example in hereditas testamentary or intestate, differed 
from SINGULAR succession by the capacity of passing obligation 
as well as Dominion. The heres of the testator or intestate sued 
and was sued in his own name on the obligations, active or pas- 
sive, that originally vested in the deceased. But UNIVERSAL 
succession was an institution only recognised by Roman jurispru- 
dence in certain definite cases. It was a formidable operation and 


1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS. 281 


rigorously circumscribed. It was not a transaction that the law 
allowed to be accomplished at the discretion of individual parties 
in pursuance of private convention. It was only admitted in the 
cases enumerated by Gaius, 2 § 98, and, without legislative inter- 
ference, the list could not be augmented. 

These difficulties in the transfer of obligation opposed a great 
obstacle to the transfer (restitutio) of trust successions: and these 
difficulties were partially removed by the Sc. Trebellianum and 
Sc. Pegasianum, and more completely by Justinian, by investing 
the Restitutio with the character of successio per universitatem, 
in other words, by the legislative sanction of a new instance of 
UNIVERSAL succession. 

The following observations may illustrate the joint operation of 
the laws concerning Trusts and the lex Faleidia. Although the 
cestui que trust (fideicommissarius) or person to whom an inherit- 
ance or a portion thereof is directed to be transferred (restitui) 
is charged like a coheres with the legacies in proportion to the 
quota which he takes, he has not like the heres a right of deduct- 
ing from the legacies with which he is charged, and retaming for 
himself a Falcidian portion or fourth of his quota. His rights 
against the legatee depend on the question whether the testator in 
directing the transfer, or in other words creating the trust, used 
the terms deductis legatis, ‘after deduction of legacies,’ a clause 
favouring the legatees ; or whether, in giving the legacies, he used 
terms charging them on the inheritance (si ad heredis onus esse 
testator legata dixerit); which would imply that the cestui que 
trust was to be exactly assimilated to the legatees. Where no 
terms are expressed, the clause, deductis legatis, is presumed. The 
following examples will illustrate the working of the law. 

(1) A testator owning 400 (sestertia, or any other units) leaves 
all to A as his sole successor, but directs him as trustee (fiduci- 
arius) to convey half the inheritance to B (fideicommissarius), and 
leaves a legacy of 200 to C. The effect is that C receives 100 
from A and 100 from B. D. 86, 1, 1, 20. 

But suppose the testator left a legacy of 400 to C. Then C will 
receive 200 from B who has no right of retaining anything, and 
100 from A, who is entitled to retain for himself one fourth of his 
inheritance, i.e. the 100 that remain. 

(2) If an heir is charged to transfer the whole of an inheritance 
and the legacies are added to his charge (si ad heredis onus esse 





282 DE RERUM UNIVERSITATIBUS. [u. §§ 246-259. 


testator legata dixerit), the interests of both the legatee and trans- 
ferree undergo, if necessary, a proportional reduction. For in- 
stance a testator, proprietor of 400, makes A his sole successor, 
but requests him to transfer the whole succession to B, and gives 
a legacy of 800 to C, making use of the above-mentioned terms. 
The result is that A, the heir, retains 100 as his Falcidian fourth, 
and the remaining 300 are distributed between B the cestui que 
trust and C the legatee, in the proportion of 4 to 8; that is to say, 
the cestui que trust takes + or 1712, and the legatee takes $ or 
1284. Dig. 86, 1, 8, pr. 

(3) If the testator directs the heir to transfer the whole of the 
inheritance ‘after deduction of the legacies’ (deductis legatis), the 
transferree bears the whole burden of the legacies, and only keeps 
what remains after full payment of the legatee, subject to this 
proviso, that, though a transferree is generally not entitled to a 
Falcidian fourth, yet if a transferree who has to bear the burden 
of legacies receives the inheritance reduced by the Falcidian fourth 
of the heres, he is himself entitled to reduce proportionally the 
legacies and retain a fourth thereof for himself. Dig. 35, 1, 48, 3. 
Dig. 85, 2, 32,4. E.g. a testator, proprietor of 400, makes A his 
sole successor, requesting him to transfer the whole to B after 
deduction of legacies, and leaves a legacy of 800 to C. The result 
is that the heir retains } (100); and the remaining 800 is dis- 
tributed between the legatee and transferree, the legatee taking 
800 reduced by } (225), and the transferree taking that 4 (75). 
The same effect would have been produced if the testator, instead 
of using the clause deductis legatis, had simply charged the lega- 
cies on the cestui que trust. Or the rights of the cestui que trust 
may be calculated with the same result by the following method. 
The heres retains 1 and transfers $ to the cestui que trust, who 
under Justinian's legislation is no longer a partiary legatee as he 
was under the Sc. Pegasianum, but a coheres with the heres in the 
proportion of $ to 1. The legatee is entitled to 300 from these 
coheirs in the proportion of their shares of the succession. The 
heres, however, is protected by the lex Falcidia, and thus 1 of the 
legacy is lost to the legatee: he obtains, however, $ (225) from 
the transferree, who retains for himself the remaining 1 (75). 

(4) I£ the heres makes voluntary aditio, but does not retain 
the Falcidian fourth to which he is entitled, then, if the legacy 
was charged on the inheritance, the whole inheritance is divided 


11. §§ 260-289.] SINGULAE RES FIDEICOMMISSARIAE. 283 


between the transferree and legatee in the proportion of 4 to 3: 
that is, the transferree obtains altogether 2284 and the legatee 
171%. 

(5) Lf the legacy was expressly charged on the fideicommissarius, 
or if there was no express clause defining whether it was charged 
on him or on the heres, then the legatee will in the first instance 
benefit by the heres abstaining from his fourth: and the transferree 
will only get what remains after full payment of the legacy. Thus, 
m the circumstances we have assumed, the legatee will get 300 and 
the transferree 100. 

(6) If the heres abstains from his } expressly in favour of the 
transferree, the latter alone gains the portion of the heres, Dig. 36, 
1,1, 19. 

(7) 1f the heres only makes compulsory aditio, the legatee takes 
no share of the Falcidian fourth, which all goes to the transferree 
who compelled the heres to make aditio. Dig. 36, 1, 2. 

(8) If the heres has to transfer the whole but has received his 
Faleidian fourth in the shape of legacies, the transferree has to 
satisfy the legatees: and if he cannot pay the whole of their lega- 
cies they may recover from the heres all that he receives beyond 
his fourth. 

(9) If the heir is directed to transfer not the whole but $ of the 
inheritance, the transferree has to satisfy the legatees, but deducts 
and retains for himself } of their legacies, as he would under the 
circumstances supposed in No. 8. Vangerow, § 559. 


DE SINGULIS REBUS PER FIDIECOMMISSUM RELICTIS. 


§ 260. Potest autem quisque etiam 
res singulas per fideicommissum re- 
linquere, uelut, fundum hominem 
uestem argentum pecuniam, et uel 
ipsum heredem rogare, ut alicui re- 
stituat, uel legatarium, quamuis a 
legatario legari non possit. 


$ 261. Item potest non solum 
propria testatoris res per fideicom- 
missum relinqui, sed etiam heredis 
aut legatarii aut cuiuslibet alterius. 
itaque et legatarius non solum de 
ea re rogari potest, ut eam alicui 
restituat quae ei legata sit, sed etiam, 


§ 260. Not only aggregates of 
right, but single rights, may be left 
in trust, as property in land, in a 
slave, in a garment, in plate, in 
money; and the trust may be im- 
posed either on an heir or on a 
legatee, although a legatee cannot 
be charged with a legacy. 

§ 261. Not only the testator's 
property, but that of an heir, or 
legatee, or stranger, may be left in 
trust. Thus a legatee may be 
charged with a trust to transfer 
either a thing bequeathed to him, 
or any other thing belonging to 





284 DE RERUM UNIVERSITATIBUS. [n. §§ 260-289. 


de alia, siue ipsius legatarii siue 
aliena sit. [sed] hoc solum obser- 
uandum est, ne plus quisquam ro- 
getur alis restituere, quam ipse 
ex testamento ceperit; nam quod 
amplius est, inutiliter relinquitur. 

$ 262. Cum autem aliena res per 
fideicommissum relinquitur, necesse 
est ei qui rogatus est, aut ipsam 
redimere et praestare, aut aestima- 
tionem etus soluere, stcué iuris est 
8 per damnationem aliena res legata 
sit. sunt tamen qui putant, si rem 
per fideicommissum relictam domi- 
nus non uendat, extingui fideicom- 
missum ; sed aliam esse causafn per 
damnationem legati. 

$ 263. Libertas quoque seruo per 
fideicommissum dari potest, ut uel 
heres rogetur manumittere, uel le- 
gatarius. 

$ 264. Nec tnterest utrum de suo 
proprio seruo testator roget, an de 
eo qui ipsius heredis aut legatarti 
uel etiam extranei sit. 

$ 265. Itaque et alienus seruus 
redimi et manumitti debet. quodsi 
dominus eum non uendat, sane 
extinguitur fideicommissaria liber- 
tas, quia hoc casu pretii conputatio 
nulla interuenit. 

$ 266. Qui autem ex fideicom- 
misso manumittitur, non testatoris 
fit libertus, etiamsi testatoris seruus 
fuerit, sed eius qui manwmittit. 


$ 267. At qui directo testamento 
liber esse iubetur, uelut hoc modo 
STICHVS SERVVS (MEVS) LIBER 
ESTO, uel hoc sTICHYM SERVVM 
MEVM LIBERVM ESSE lVBEO, 18 ip- 
sus testatoris fit libertus. nec 
alius ullus directo ex testamento 


. libertatem habere potest, quam qui 


utroque tempore testatoris ex iure 
Quiritium fuerit, el quo faceret tes- 
tamentum et quo moreretur. 

$268. Multum autem differunt ea 
quae per fideicommissum relincwn|- 
tur, abhis quae directo iurelegantur. 


himself or to a stranger; provided 
always that he is not charged with 
& trust to transfer more than he 
takes under the will, for in respect 
of such excess the trust would be 
void. 
$ 262. When a stranger’s pro- 
perty is left by trust, the trustee 
must either procure and convey the 
specific thing or pay its valuation, 
like an heir charged under a be- 
quest by condemnation; though 
some hold that the owner's refusal 
to sell avoids a trust to convey, 
while it does not avoid a bequest 
by condemnation. 


$ 263. Liberty can be left to a 
slave by a trust charging either an 
heir or a legatee with his manu- 
mission. 

$ 264. And it makes no differ- 
ence whether the slave is the pro- 
perty of the testator, of the heir, 
of the legatee, or of a stranger. 

$ 265. A stranger's slave, there- 
fore, must be purchased and manu- 
mitted, but his owner's refusal to 
gell extinguishes the gift of liberty, 
because liberty admits of no pecu- 
niary compensation. 

$ 266. A trust of manumission 
makes the slave the freedman, not 
of the testator, though he may have 
been the owner of the slave, but of 
the manumitter, 

§ 267. A direct bequest of liberty, 
such as: ‘ Be my slave Stichus free,’ 
or, ‘I order that my slave Stichus 
be free,’ makes the slave the freed- 
man of the testator. A direct be- 
quest of liberty can only be made 
to a slave who is the testator's qui- 
ritarian property at both periods, 
both at the time of making his will 
and at the time of. his decease. 


§ 268. There are many differ- 
ences between fiduciary devises and 
direct bequests. 


11. § 260-289.] SINGULAE RES FIDEICOMMISSARIA E. 


$ 269. Nam ecce per fideicom- 
missum efiam —|— heredis relin- 
qui potest; cum alioquin legatum 
—|—— inutile sit. 


§ 270. | Item intestatus moriturus 
potest ab eo ad quem bona eius 
pertinent, fideicommissum alicui 
relinquere ; cum alioquin ab eo le- 
gari non poseit. 

6 270a. Item legatum codicillis 
relictum non aliter ualet, quam si a 
testatore confirmati fuerint, id est 
nisi in testamento cauerit testator, 
ut quidquid in codicillis scripserit, 
id ratum sit; fideicommissum uero 
eiiam non confirmatis codicillis re- 
linqui potest. 

$ 271. Item a legatario legari non 
potest; sed fideicommissum relin- 
qui potest. quin etiam ab eo quoque 
cui perfideicommissum relinquimus, 
rursus ali per fideicommissum re- 
linquere possumus. 

$ 272. Item seruo alieno directo 
hbertas dari non potest; sed per 
fideicommissum potest. 


$ 273. Item-codicillis nemo heres 
institui potest neque exheredari, 
quamuis testamento confirmati sint. 
at is qui testamento heres institutus 
est, potest codicillis rogari, ut eam 
hereditatem alii totam uel ex parte 
restituat, quamuis testamento codi- 
cilli confirmati non sint. 

$ 274. Item mulier quae ab eo 
qui centum milia aeris census est, 
per legem Voconiam heres institui 
non potest, tamen fideicommisso 
relictam sibi hereditatem capere 


$275. Latini quoque qui here- 
ditates legataque directo iure lege 
Iunia capere prohibentur, ex fidei- 
commisso capere possunt. 


$ 276. Item cum eenatusconsulto 
prohibitum sit proprium seruum 
minorem annis Xxx liberum et he- 


285 


$ 269. In a fiduciary devise a 
bequest may be charged on the 
heir of the heir, whereas such a 
bequest made in any other form is 
void. 

$ 270. Again, a man going to die 
intestate can charge his heir with a 
trust, but cannot charge him with 
a legacy. 


$ 270a. Again, a legacy left by 
codicil 1s not valid, unless the codicil 
is ratified, that 1s, unless the testa- 
tor has provided in his will that 
any codicil should be valid: where- 
as a trust requires no ratification of 
the codicil. 


$ 271. A legatee cannot be 
charged with a legacy, but can be 
charged with a trust, and the bene- 
ficiary of a trust may himself be 
charged with a further trust. 


§ 272. A slave of a stranger can- 
not be enfranchised by direct be- 
quest, but may by the interposition 
of a trust. 

§ 273. A codicil is not a valid 
instrument for the institution of an 
heir or his disinheritance, though 
ratified by will: but an heir insti- 
tuted by will may be charged by a 
codicil to convey the estate in whole 
or in part to another person without 
any previous ratification by will. 

§ 274. A woman, whom a testator 
registered in the census as owning 
a hundred thousand sesterces is for- 
bidden by the lex Voconia to insti- 
tute heiress, can take the succession 
by the intervention of a trustee. 

$ 275. Latini Juniani, who are 
disabled by the lex Junia from 
taking an inheritance or legacy by 
direct devise, can take it by means 
of a declaration of trust. 

$ 276. A decree of the senate 
(rather, the lex Aelia Sentia 1 $18,) 
incapacitates a testator's slave under 


286 


redem instituere, plerisque placet 
posse nos iubere liberum esse, cum 
annorum Xxx erit et rogare ut 
tunc illi restituatur hereditas. 


$ 277. Item quamuis non (possi- 
mus) post mortem eius qui nobis 
heres extiterit, alium in locum eius 
heredem instituere, tamen possumus 
eum rogare, ut cum morietur, alii 
eam hereditatem totam uel ex parte 
restituat. et quia post mortem 
quoque heredis fideicommissum dari 
potest, idem efficere possumus et si 
ita scripserimus CVM TITIVS HERES 
MEVS MORTVVS ERIT, VOLO HEREDI- 
TATKM MEAM AD P. MEVIVM PEBTI- 
NERE. utroque autem modo, tam 
hoc quam illo, Titius heredem swam 
obligatum relinqui£. de fideicom- 
misso restituendo. 

$ 278. Praeterea legata (per) 
formulam petimus; fideicommissa 
nero Romae quidem apud consulem 
uel apud eum praetorem qui prae- 
cipue de fideicommissis ius dicit, 
persequimur, in prouinciis uero 
apud praesidem prouinciae. 

$ 279. Item de fideicommiseis 
semper in urbe ius dicitur; de 
legatis uero, cum res aguntur. 


$ 280. Item fideicommissorum 
usurae et fructus debentur, si modo 
moram solutionis fecerit qui fidei- 
commissum debebit ; legatorum uero 
usurae non debentur; idque re- 
scripto diui Hadriani significatur. 
scio tamen Iuliano placuisse, in eo 
legato quod sinendi modo relin- 
quitur, idem iuris esse quod in fidei- 
commissis; quam sententiam et his 
temporibus magis optinere uideo. 

$ 281. Item legata Graece scripta 
non ualent; fideicommissa wero 


ualent. 


DE RERUM UNIVERSITATIBUS. [n.$$260-289. 


thirty years of age for being en- 
franchised and instituted heir; but, 
according to the prevalent opinion, 
he can be ordered to be free on at- 
taining the age of thirty, and the 
heir may be bound by a declaration 
of trust to convey the inheritance 
to him on that event. 

§ 277. An heir in remainder 
after the death of & prior heir can- 
not be instituted, but an heir may 
be bound by a declaration of trust 
to convey the estate, when he dies, 
in whole or in part to another per- 
son ; or, as a trust may be limited 
to take effect after the death of the 
heir, the same purpose may be 
accomplished in these terms: ‘When 
my heir is dead, I wish my inherit- 
ance to go to Publius Mevius ;' 
and whichever terms are employed, 
the heir of my heir is bound by a 
trust to convey the inheritance to 
the person designated. 

§ 278. Legacies are recovered by 
judex. and formula ; trusts are en- 
forced by the extraordinary juris- 
diction of the consul or praetor 
fideicommissarius at Rome; in the 
provinces by the extraordinary ju- 
risdiction of the president. 

$ 279. Cases of trust are heard 
and determined at Rome at all times 
of the year; cases of legacy can 
only be litigated during the trial 
term. 

$ 280. Trusts entitle to payment 
of interest and interim profits on 
delay of performance by the trus- 
tee; legatees are not entitled to 
interest, as & rescript of Hadrian 
declares. Julianus, however, held 
that a legacy bequeathed in the form 
of permission is on the sime footing 
as a trust, and this is now the pre- 
valent doctrine, 


$ 281. Bequests expressed in 
Greek are invalid; trusts expressed 
in Greek are valid. 


1x §§ 260-289. SINGULAE RES FIDEICOMMISSARIAE. 


§ 282. Item si legatum per dam- 
nationem relictum heres infittetur, 
in duplum cum eo agitur ; fideicom- 
missi uero nomine semper in sim- 
plum persecutio est. 


$ 283. Item (quod) quisque ex 
fideicommisso plus debito per erro- 


rem soluerit, repetere potest; at 
id quod ex causa falsa per damna- 
tionem legati plus debito solutum 
sit, repeti non potest. idem scilicet 
iuris est de eo [legato] quod non 
debitum uel ex hac uel ex illa causa 
per errorem solutum fuerit. 


$ 284. Erant etiam aliae differ- 
entiae, quae nunc non sunt. 

§ 285. Ut-ecce peregrini poterant 
fideicommissa capere; et fere haec 
fuit origo fidezcommissorum. sed 
postea id prohibitum est ; et nunc 
ex oratione diut Hadriani senatus- 
consultum factum est, ut ea fidet- 
commissa fisco uindicarentur. 


$ 286. Caelibes quoque qui per 
legem Iulam hereditates legataque 


capere prohibentur, olim fideicom- 


missa uidebantur capere posse. 

$286 a. Item orbi qui per legem 
Papiam [ob id quod liberos non ha- 
bebant ] dimidias partes hereditatum 
legatorumque perdunt, olim solida 
fideicommissa uidebantur capere 
posse. sed postea senatusconsulto 
Pegasiano proinde fidetcommissa 
quoque ac legata hereditatesque 
capere posse prohibiti sunt ; eaque 
translata sunt ad eos qui (in eo) 
testamento liberos habent, aut si 
nullus liberos habebit, ad populum, 
sicut iuris est in legatis et in here- 
ditatibus, quae eadem aut simili ex 
cau (sa caduca fiunt. 


$ 287. Dtem olim incertae per- 
sonae uel postumo alieno per fidei- 


287 


$ 282. An heir who disputes a 
legacy in the form of condemnation 
is sued for double the sum be- 
queathed; a trustee is only suable 
for the simple amount of the sub- 
ject of trust. 

$ 283. On overpayment by mis- 
take in the case of a trust, the excess 
can be recovered back by the trus- 
tee; on overpayment by mistake 
of a bequest by condemnation, the 
excess cannot be recovered back by 
the heir; so, on total failure of a 
disposition and payment by mistake, 
a trust sum can, a legacy by con- 
demnation cannot, be recovered 
back. 

§ 284. There formerly were other 
differences which are now abolished. 

§ 285. Thus aliens could be bene- 
fited by a declaration of trust, and 
this was the principal motive in 
which trusts originated, but after- 
wards they were incapacitated ; and 
now, by a decree of the senate 
passed on the proposition of Ha- 
drian, property devised in trust for 
the benefit of aliens is confiscated. 

§ 286. Celibates, who are dis- 
abled by the lex Julia from taking 
successions or legacies, were for- 
merly deemed capable of benefiting 
by a declaration of trust. And 
childless persons, who forfeit by 
the lex Papia half the succes- 
sions and legacies destined for 
them, were formerly deemed ca- 
pable of taking the whole as bene- 
ficiaries of a trust. But at a later 
period the Sc. Pegasianum extended 
to trust dispositions the disabilities 
which attach to legacies and suc- 
cessions, and made the trust fund 
escheat to the devisees and legatees 
who have children, and, failing de- 
visees and legatees with children, 
to the state, in the same way as 
legacies and successions. 

§ 287. So too, at one time, an 
uncertain person or an afterborn 


288 


commissum relinqui poterat, quam- 
uis neque heres institui neque legari 


ei posset ; sed senatusconsulto quod : 


auctore divo Hadriano factum est, 
idem in fideicommissis quod in le- 
gatis hereditatibusque constitutum 
est. 


$ 288. Item poenae nomine iam 
non dubitatur nec per fideicommis- 
sum quidem relinqui posse. 

$ 289. Sed quamuis $i» multis 
iuris partibus longe latior causa sit 
fideicommissorum quam eorum quae 
directo relincuntur, in quibusdam 
tantumdem ualeant, tamen tutor 
non aliter testamento dari potest 
quam directo, ueluti hoc modo L1- 
BERIS MEIS TITIVS TYTOR ESTO, uel 
ita LIBERIS MEIS TITIVM TVTOREM 
DO; per fideicommissum wero dari 
non potest. 


DE RERUM UNIVERSITATIBUS. [11. § 260-289. 


stranger could take the benefit of. 
& trust, though he could neither 
take as heir nor as legatee, but a 
decree of the senate, passed on the 
proposition of the emperor Ha- 
drian, extended to trust funds 
the disabilities relating to legacies 
and successions. 

§ 288. Penal dispositions are at 
last decided to obtain no validity by 
being clothed in a fiduciary form. 

§ 289. Although in many circum- 
stances declarations of trust have 
an ampler scope than direct dispo- 
sitions, and in some respects are on 
& par, yet a testamentary guardian 
can only be appointed by direct 
nomination, as thus: ‘Be Titius 
guardian to my children ;’ or thus : 
‘I nominate Titius guardian to my 
children ;’ he cannot be appointed 
indirectly by the intermediation of 
a trustee. 


§ 264. Justinian declares that the heir is not forthwith released 


from his obligation by the owner’s refusal to sell, but will be bound 
to seize any opportunity that may subsequently offer of purchasing 
and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2. 
§ 270. Codicils, according to Justinian, first acquired legal 
validity in the time of Augustus, who being trustee under a codicil 
set the example of performing the trust. The jurist Trebatius 
being consulted by Augustus, whether it was possible to give legal 
force to codicils without defeating the policy of testamentary law, 
gave a decided opinion in the affirmative; and all scruples respect- 
ing the validity of codicils vanished when it became known that 
codicils had been left by the eminent jurist Labeo, Inst. 2, 25 pr. 
Codicillus is the diminutive of codex, and denotes the less import- 
ant and solemn documents or instruments of a man of business, 
a pocket-book, an agenda, a codicil; as codex denotes the more 
important and formal documents, a journal, a ledger, à wil. A 
codicil enabled a testator who had solemnly executed a will to add 
to or modify its dispositions without the necessity of re-execution. 
It was usual in a will to ratify any prior or subsequent codicils ; 
a codicil, however, might exist without any will. An informal will 
could only take effect as a codicil if such was the expressed inten- 


Ir. $$ 260-289. ] TERMS AND VACATIONS. | 289 


tion of the testator. A codicil could not contain an institution or 
disinheritance or substitution ; but it might contain a trust for the 
transfer of the whole of an inheritance: and though a codicil could 
not contain a disinheritance, yet we have seen that a codicillary 
declaration that the successor was unworthy produced confiscation 
or ereption of the inheritance for indignitas. A testator could only 
leave a single will, for a later will revoked a former ; but he might 
leave many codicils. A codicil needed no formalities, though Jus- 
tinian required the attestation of five witnesses, not, however, as an 
essential solemnity, but as a means of proof: for, in the absence of 
five witnesses, the heir might be required to deny the existence of a 
declaration of trust upon his oath, Inst. 2, 28, 12. The admission 
of eodicils was a departure from the rule requiring a unity in the act 
of testation. The concentration of his last will in a single act 
disposing simultaneously of the universal succession was no longer 
required of the testator. He now might distribute his fortune in a 
series of fragmentary or piecemeal and unrelated dispositions. 

$ 278. Fideicommissa were enforced by persecutio, or the prae- 
tor's extraordinaria cognitio, 4 $ 184 comm. 

$ 279. The law terms at Rome during the greater part of the 
formulary period, were of two different kinds: (1) the juridical 
term or term for jurisdictio, and (2) the judicial term or term for 
trials. 

(1) The term for jurisdiction, that is, for the solemn acts of the 
praetor sitting on the tribunal in his court in the comitium, was 
that originally prescribed for the ancient legis actiones. The year 
was divided into forty dies fasti, unconditionally allotted to juridical 
proceedings, one hundred and ninety dies comitiales, available for 
junidieal purposes unless required for the legislative assemblies, dies 
intercisi, of which certain hours were available for jurisdiction, and 
sixty dies nefasti, which were absolutely unavailable for juridical 
proceedings. 

(2) J udicia, or trials before a judex 1n the forum, were unaffected 
by dies fasti and nefasti, but dependent on another division, dies 
festi and profesti: dies festi (days devoted to feriae, ludi, epulae, 
sacrificia) being exempted from litigation. Besides these occasional 
interruptions of litigation, there were longer set vacations, which 
we find rearranged on several occasions. Thus at one time we find 
two judicial terms (rerum actus, cum res aguntur) in the year, a 
winter and a summer term, and two vacations, one in spring and 

U 


290 DE RERUM UNIVERSITATIBUS. [n.$$260—289. 


another in autumn. Claudius substituted a single vacation at the 
close of the year, and made the law term continuous. Rerum actum, 
divisum antea in hibernos aestivosque menses, conjunxit, Suetonius, 
Claudius, 23. Galba abolished this vacation, and confined the 
intervals of htigation to dies feriati. Marcus Aurelius, in the time 
of Gaius, abolished the distinction between the jurisdiction term 
(dies fasti) and the trial term (rerum actus). He devoted two hun- 
dred and thirty days (adding the number of dies fasti to the number 
of dies comitiales) to forensic proceedings, under the name of dies 
juridici or dies judiciarii, and allowed even the rest of the year, dies 
feriati, to be used for litigation with the consent of the parties. 
Judiciariae rei singularem diligentiam adhibuit: fastis dies judici- 
arios addidit, ita ut ducentos triginta dies annuos rebus agendis 
litibusque disceptandis constitueret, Capitolinus, Marcus, 10. ‘He 
also regulated the administration of justice, noting forensic days in 
the calendar, and allotting two hundred and thirty. to litigation 
and civil suits.’ 

Subsequently to the time of Gaius, a law of Valentinian, Theo- 
dosius, and Arcadius, A.D. 389, while it declared the principle that 
all days are. dies juridici, excepted, besides Sundays and certain 
other holidays, two months for harvest and vintage, and two weeks 
at Easter. Justinian further appointed, by way of interpolation in 
this law, certain vacations at Christmas, Epiphany, and Pentecost, 
Cod. 8, 12, 7, thus furnishing the model en which the four English 
law terms were regulated by Edward the Confessor. Subsequently, 
the Statute. of Westminster, 3, Edward I, permitted assizes, i.e. 
trials by jury of issues of fact, to be held in.the vacations, re-estab- 
lishing a distinction corresponding to that of jurisdictional (dies 
fasti) and judicial terms (rerum actus); with this difference, how- 
ever, that as the same judicial authorities preside over. proceedings 
in banco, or issues of law, and proceedings at nisi prius, or issues 
of fact, the seasons set apart for the latter, that is, the trial terms, 
are merely the vacations of the forraer, that is, of the sittings in 
banco, See Puchta, Institutionen, § 158. 

§ 280. After the time of Gaius the liability of a defendant to 
interest and profits (fructus) from the date on which he was guilty 
of MoRA appears to have been extended to all legacies without ex- 
ception. Ex mora praestandorum fideicommissorum vel legatorum 
fructus et usurae peti possunt: mora autem fieri videtur cum pos- 
tulanti non datur, Paulus 3, 8, 4, ‘Delay of the heir to satisfy 


n. $$ 260-289. ] MORA. 291 


trusts and legacies entitles the cestui que trust and legatee to 
fruits and interest. Delay dates from the ineffectual demand of 
the creditor.’ 

A demand however is not requisite when a term for payment 
was fixed in the disposition which gave rise to the debt (dies 
adjecta); in other words, no interpellation is necessary in an obli- 
gation ex die, i.e. an obligatio with a dies adjecta; for then Mora 
begins at the expiration of the term. This is expressed by modern 
jurists m the maxim: dies interpellat pro homine: ‘the day de- 
mands instead of the creditor.’ 

A farther condition of Mora is the absence of all doubt and dis- 
pute, at least of all dispute that is not frivolous and vexatious, as to 
the existence and amount of the debt. Qui sine dolo malo ad 
judicem provocat non videtur moram facere, Dig. 50, 17,68. ‘An 
honest appeal to a judge is not deemed a mode of Delay.’ 

The date of Mora must not be identified with that of the Nativity 
of an action (actio nata), an important date, as we shall see, in the 
doctrine of Limitation or Prescription of which it is the starting 
pomt, a starting point that may be antecedent to Mora. Mora 
generally cannot precede an interpellation or démand of payment: 
but the omission of a demand is precisely a part of that course of 
remissness and negligence whereby, under the rules of Prescription, 
a creditor ultimately forfeits his right to sue. Savigny, § 239. 

Mora in the sphere of Obligation and Personal actions: exactly 
corresponds to Mala fides or Mala fide possessio m the sphere of 
Dominion and Real actions. Both imply a consciousness of wrong, 
that is to say, Culpa in the larger sense in which it comprehends 
Dolus: with this reservation, that Mora'is an omission or negative 
act, which sometimes arises, not from want of will, but from want 
of means or ability to pay ; whereas Mala fide possessio is a positive 
act that is always wilful and dolose. Both Mora, then, and Mala 
fide possessio have a delictual character. Bona fides, or tlie absence 
of dolus, is consistent with the absence of diligentia, i.e. the pre- 
sence of culpa. 

Litis Contestatio, the first stage in an action, another landmark 
of great importance in Roman jurisprudence in ascertaining, and 
measuring the sanctioning rights and obligations of suitors, 3 § 180, 
is a kind of bilateral Disposition which may be classed among 
Quasi-contracts, and, except when merely frivolous and vexatious, 
is entirely devoid of delictual character. The consequences, how- 

U2 








292 DE RERUM UNIVERSITATIBUS. [nz §§ 260-289. 


ever, of Litis contestatio, in spite of this difference of character, are 
similar to those of Mora and Mala fide possessio. For, in order to 
save a plaintiff from being ruined by the duration of a trial, Litis 
contestatio is supposed to be followed immediately by judgment; . 
or, in other words, Litis contestatio entitles him, in respect of 
fructus and usurae, to all the rights to which he is entitled by 
lata sententia. 

$ 283. Money paid by mistake was not recoverable when the 
payer was liable to be sued for double damages, Inst. 8, 27, 7, 
because then the payment is not deemed to be a mistake, but a com- 
promise, in order to avoid the chance of condemnation in double 
damages. The laws protecting certain rights by duplication of 
damages, 4 § 171, would have been evaded if a defendant was allowed 
to pay the simple damages and then attempt to recover them back 
by condictio indebiti soluti. | 

$ 285. So by English law aliens were not, till recently, allowed 
to purchase land or to take land by devise. Land purchased by an 
alien or devised to an alien was forfeited to the crown. An alien, 
however, could hold personal property and take bequests of personal 
property. In France, formerly, an alien was not allowed to make 
& wil, but all his property at his death escheated to the crown 
by the droit d'aubaine. [Aubain is from alibanus. Alibi in bar- 
barous Latin produced alibanus, just as longiter produced lontanus 
and ante antianus, Diez.] 

$ 289. Justinian abolished the distinction between legacies and 
trusts, enacting that legacies should no longer be governed by the 
rigours of the civil law, but subject to the same rules and construed 
with the same liberality as trusts, Inst. 2, 20, 8. "Trusts being a 
matter of the praetor's cognitio extraordinaria cannot, properly 
speaking, be called a subject of Bonae fidei actio, for actio implies 
the cognizance of a judex: but the principles of cognitio extraor- 
dinaria were doubtless the same as those of bonae fidei actio. With 
this reservation, then, we may say that legata sinendi modo and per 
damnationem were before Justinian's time recoverable by stricti 
juris actio, and after his time by bonae fidei actio. 

By English law, a will of lands operates as a mode of conveyance 
requiring no extrinsic sanction to render it available as & document 
of title. A will of personalty requires for its authentication to be 
proved before a court by the oath of the executor and, unless the 
attestation clause is in a certain form, by the affidavit of one of the 


11. $$ 260-289. ] MORA, 293 


subscribing witnesses; or, if the validity of the will is disputed, by 
examination of the witnesses on oath in the presence of the parties 
interested. The will itself is deposited in the registry of the Court 
of Probate; a copy of it in parchment, under the seal of the Court 
of Probate, delivered to the executor along with a certificate of 
proof, is the only proper evidence of his right to intermeddle with 
the personal estate of the testator. 

The following were the corresponding formalities of Roman law 
prescribed by lex Julia vicesimaria : Paulus, Sent. Rec. 4, 6 :— 

‘A will is opened in the following manner: the witnesses, or the 
majority, who affixed their seals, are summoned and acknowledge 
their seals, the cord is broken, the tablets are opened, the will is 
read, a copy is taken, a public seal is affixed to the original, and it 
is deposited in the archives, so that if the copy is ever lost there 
may be a means of making another. 

‘In municipalities, colonies, towns, prefectures, wicks, castles, 
staples, a will must be read in the forum or basilica, in the presence 
of the attesting witnesses or of respectable persons, between eight 
o’clock in the morning and four o’clock in the afternoon; and, as 
soon as a copy has been made, must be sealed up again by the 
magistrate in whose presence it was opened. 

‘A will is intended by the law to be opened immediately after 
the death of the testator; accordingly, though rescripts have 
varied, it is now the rule that, if all the parties are present, three 
or five days is the interval within which the tablets must be 
opened ; if they are absent, the same number of days after they are 
assembled; in order that heirs, legatees, manumitted slaves, and 
the military treasury (entitled, 3 § 125, to vicesima hereditatum, 
i.e. 5 per cent. on the value of Roman citizens’ testamentary suc- 
cessions), may come into their rights without unnecessary delay.’ 

In eases of urgency, when the will was opened in the absence 
of the attesting witnesses in the presence of respectable persons, it 
was afterwards forwarded to the witnesses for the verification of 
their seals, Dig, 29, 8, 7. Every one who desired it had the power 
of inspecting a will and taking a copy, Dig. 29, 8, 8. 


BOOK III. 


DE RERUM UNIVERSITATIBUS ET DE 
OBLIGATIONIBUS. 





DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR. 


$ 1. 7ntestatorum hereditates (ex, 
lege X11 tabularum primum ad suos 
heredes pertinent. 

§ 2. Sut autem heredes existi- 
mantur liberi qui in potestate mort- 
entis. fuerent, ueluti. filius. filiaue, 
nepos neptisue (ex fito), pronepos 
proneptisue ex nepote filio nato prog- 
natus  prognataue, nec  $nterest, 
(utrum) naturales (sint) liberi an 
adoptiui, ita demum tamen nepos 
meptisue et pronepos  proneptisue 
suorum heredum numero sunt, st 
praecedens persona destertt (tn po- 
testate parentis esse, siue morte 1d 
acciderit, ) siue alia ratione, uelute 
emancipatione. nam si per td tem- 
pus quo quisque moritur, filius in 
potestate eius. sit, nepos ex eo suus 
heres esse non polest. idem el. in 
ceteris. deinceps. liberorum | personis 
dictum tntellegemus, 


$3. Vaor quoque quae in manu 
est, sua heres est, quia filiae loco est. 


item nurus quae in filii manu est, 
nam et haec neptis loco est. sed ita 
demum erit sua heres, (st) filius 
euius in manu fuerit, cum pater 
moritur, in potestate eius non sit. 
idemque dicemus et de ea quae in 


$ 1. Intestate successions by the 
law of the Twelve Tables devolve 
first to self-successors. 

$ 2. Self-successors are children 
in the power of the deceased at the 
time of his death, such as & son or 
a daughter, a grandchild by a son, 
a great-grandchild by a grandson by 
& son, whether such children are 
natural or adoptive: subject, how- 
ever, to this reservation, that a 
grandchild or great-grandchild is 
only self-succescor when the person 
in the preceding degree has ceased 
to be in the power of the parent 
either by death or some other 
means, such as emancipation ; for 
instance, if a son was in the power 
of the deceased at the time of his 
death, a grandson by that son can- 
not be & self-successor, and the 
same proviso applies to the subse- 
quent degrees. 

§ 3. A wife in the hand of the 
deceased is a self-successor, for she 
is @ quasi daughter; also a son's 
wife in the hand of the son, for she 
is & quasi granddaughter : subject, 
however, to the proviso that she is 
not self-successor if her husband is 
in the power of his father at the 


mz. §§ 1-8.] 
nepotis manu malrimonii causa sit, 
quia proneptis loco est. 


$4. Postumi quoque (qui) & 
wiuo parente nati essent, in potes- 
tale eius. futuri forent, sui heredes 
sunt. 

$ 5. Jdem turis est de his 
nomine ex lege Aelia Sentia uel ex 
senatusconsulto post mortem patris 
causa probatur. nam et hi uiuo 
patre causa probata in potestate 
eius futuri essent. 


$ 6. Quod etiam de eo filio qui 
ex prima secundaue mancipatione 
post mortem patris manumittitur, 
intellegemus. 

§ 7. Igitur cum filius filiaue ‘et 
ex altero filio nepotes neptesue ex- 
tant, pariter ad hereditatem uocan- 
ter; nec qui gradu proximior est, 
ulteriorem excludit. aeqwum enim 
uidebatur nepotes neptesue in patris 
sui locum portionemque succedere. 
peri ratione et si nepos neptisue sit 
ex filio et ex nepote pronepos pro- 
neptisue, simul omnes uocantur ad 
hereditatem. 


$8. Et quia placebat nepotes 
neptesue, item pronepotes pronep- 
tesue in parentis sui locum suc- 
cedere, conueniens esse ulsum est 
non in capita, sed (in) stirpes he- 
reditatem diuidi; ita ut fihus par- 
tem dimidiam hereditatis ferat et 
ex altero filio duo pluresue nepotes 
alteram dimidiam; item si ex duo- 
bus filiis nepotes extent, ex altero 
filio unus forte uel duo, ex altero 
tres aut quattuor, ad unwm aut ad 
duos dimidia pars pertineat et ad 
tres aut quattuor altera dimidia. 


DE HEREDITATIBUS, ETC. - 


295 


time of his father's death. A wife 
in the hand of a grandson is a self- 
successor, subject to the same pro- 
viso, because she is a quasi great- 
granddaughter. 

$ 4. After-born children, who, if 
born in the lifetime of the parent, 
would have been subject to his 
power, are self-successors. 

$ 5. Also those in whose behalf 
the provisions of the lex Aelia 
Sentia (1 § 32) or the senatuscon- 
sult have been satisfied by proof of 
excusable error subsequently to the 
death of the parent, for if the error 
had been proved in the lifetime of 
the parent they would have been 
subject to his power. 

$ 6. Also, a son, who has under- 
gone a first or second mancipation 
and is manumitted after the death 
of the father, is & self-successor. 

$ 7. Accordingly, & son or 
daughter and grandchildren by an- 
other son are called contemporane- 
ously to the succession; nor does 
the nearer grade exclude the more 
remote, for justice seemed to dic- 
tate that grandchildren should suc- 
ceed to their fathet’s place and 
portion. Similarly, a grandchild by 
8 son and a great-grandchild by 
& grandson by a son are called con- 
temporaneously to the succession. 

§ 8. And as it was deemed to be 
just that grandchildren and great- 
grandchildren should succeed to 
their father’s place, it seemed con- 
sistent that the number of stems, 
and not the number of individuals, 
should be the divisor of the suc- 
cession ; so that a son should take 
& moiety, and grandchildren by 
another son the other moiety; or 
if two sons left children, that a 
single grandchild or two grand- 
children by one son should take 
one moiety, and three or four 
grandchildren by the other son the 
other moiety. 





296 


DE RERUM UNIVERSITATIBUS. 


[nr. $$ 9-17. 


$1. The words testate? and ‘intestate,’ in the language of 
English lawyers, are only applicable, I believe, to a deceased per- 


s00. 


The awkwardness of having no corresponding adjectives 


to couple with succession must be my apology for sometimes 
speaking of testate or intestate succession. 
For the meaning of suus heres, see commentary on 2 § 157 and 


2 § 128. 


DE LEGITIMA AGNATORUM SUCCESSIONE. 


§ 9. Si nullus sit suorum here- 
dum, tunc hereditas pertinet ex 
eadem lege xii tabularum ad ag- 
natos. 

$ 10. Vocantur autem agnati qui 
legitima cognatione iuncti sunt. 
legitima autem cognatio est ea quae 
per uirilis sezus personas contungi- 
tur. itaque eodem patre nati fratres 
agnatz stbt sunt, qui etiam consan- 
guinet uocantur, nec requiritur an 
etiam matrem eandem habuerint. 
item patruus fratris filio et inuicem 
is illi agnatus est. eodem numero 
sunt fratres patrueles inter se, id 
est qui duobus fratribus progene- 
rati sunt, quos plerique etiam con- 
sobrinos uocant. qua ratione scilicet 
eliam ad plures gradus agnationis 
peruenire poterimus, 

$ 11. Non tamen omnibus simul 


agnatts dat lex xii tabularum here- . 


ditatem, sed his qui tum cum cer- 
tum est aliquem intestatum deces- 
81886, proximo gradu sunt. 


$12. Nec in eo iure successio 
est. ideoque si agnatus proximus 
hereditatem omiserit, uel antequam 
adierit, decesserit, sequentibus nihi] 
luris ex lege conpetit. 


$13. Ideo autem non mortis 
tempore quis proximus fuerit re- 
quirimus, sed eo tempore quo cer- 
tum fuerit, aliquem intestatum de- 
cessisse, quia si quis testamento 


§ 9. If there is no self-successor, 
the succession devolves by the same 
law of the Twelve Tables to the 
agnates. 

§ 10. Agnates are statutory cog- 
nates. Statutory cognates are kin- 
dred related through males. Thus 
brothers by the same father are ag- 
nates, though by different mothers, 
and are called consanguineous ; 
and a fathers consanguineous 
brother is agnate to the nephew, 
and vice versá; and the sons of 
consanguineous brothers, who are 
called consobrini, are mutual ag- 
nates; so that there are various 


degrees of agnation. 


$ 11. Agnates are not called all 
contemporaneously to the succes- 
sion by the law of the Twelve 
Tables, but only those of the nearest 
degree at the moment when it is 
certain that the deceased is in- 
testate. 

$ 12. And in title by agnation 
there is no advancement of grades ; 
that is to say, if an agnate of the 
nearest grade decline the succession, 
or die before acceptance, the agnates 
of the next grade do not become 
entitled under the statute. 

$13. The date for determining 
the nearest te is not the mo- 
ment of death, but the moment 
when intestacy is certain, because 
it seemed better, when a will is left, 


ni. $$ 9-17.] 


facto decesserit, melius esse uisum 
est tunc requiri proximum, cum cer- 
ium esse coeperit neminem ex eo 
testamento fore heredem, 

$14. Quod ad feminas tamen 
attinet, in hoc iure aliud in ipsa- 
rum hereditatibus capiendis placuit, 
aliud in ceterorum [bonis] ab his 
capiendis. nam feminarum heredt- 
tutes proinde ad nos agnationis iure 
redeunt atque masculorum ; nostrae 
uero hereditates ad feminas ultra 
consanguineorum gradum non per- 
tinent. itaque soror fratri sororiue 
legitima heres est, &mita uero et 
fratris filia legitima heres esse (non 
potest. sororis autem nobis loco est) 
etiam mater aut nouerca quae per in 
manum conuentionem apud patrem 
nostrum iura filiae nacta est. 


$ 15. Si ei qui defunctus erit, sit 
frater et alterius fratris filius, sicut 
ex superioribus intellegitur, frater 
potior est, quia gradu praecedit. 
sed alia facta est iuris interpretatio 
inter suos heredes, 

$ 16. Quodsi defuncti nullus fra- 
ter extet, (sed) sint liberi fratrum, 
ad omnes quidem hereditas pertinet ; 
sed quaesitum est, si dispari forte 
numero sipt nati, ut ex uno unus 
uel duo, ex altero tres uel quattuor, 
utrum in stirpes diuidenda sit here- 
ditas, sicut inter suos heredes iuris 
est, an potius in capita. iam dudum 
tamen placuit in capita diuidendam 
esse hereditatem. | itaque quotquot 
erunt ab utraque parte personae, in 
tot portiones hereditas diuidetur, 
ita ut singuli singulas portiones 
ferant. 


$ 17. Si nullus agnatus sit, eadem 
lez xii tabularum gentiles ad here- 


DE AGNATORUM SUCCESSIONE. 


297 


io take the nearest agnate at the 
moment when it is ascertained that 
there will be no testamentary suc- 
cessor. 

§ 14. As to females, the rules of 
titles by descent are not the same in 
respect of the successions which 
they leave and in respect of the 
successions which they take. An 
inheritance left by a female is ac- 
quired by a male by the same title 
of agnation as an inheritance left 
by a male, but an inheritance left 
by a male does not devolve to fe- 
males beyond sisters born of the 
same father. Thus a sister succeeds 
to a sister or brother by the same 
father, but the sister of a father and 
daughter of a brother have no sta- 
tutory title by descent. The rights 
of quasi sister belong to a mother 
or stepmother who passes into the 
hand of a father by marriage and 
acquires the position of a quasi 
daughter. 

§ 15. If the deceased leaves a 
brother and another brother's son, 
as observed before (§ 11), the bro- 
ther has priority, because he is 
nearer in degree, which differs from 
the rule applied to self-successors. 

§ 16. If the deceased leaves no 
brother, but children of more than 
ove brother, they are all entitled to 
the succession; and it was once a 
question, in case the brothers left 
an unequal number of children, 
whether the number of stems was 
to be the divisor of the inheritance, 
as among self-successors, or the 
number of individuals; however, it 
has long been settled that the di- 
visor is the number of individuals. 
Accordingly, the total number of 
persons determines the number of 
parts into which the inheritance 
must be divided, and each indivi- 
dual takes an equal portion. 

§17. In the absence of agnates the 
same law of the Twelve Tables calls 








298 


ditatem uocat. qui sint autem gen- 
tiles, primo commentario rettuli- 
| mus; et cum illic admonuerimus 
totum gentilictum ius in desuetu- 
dinem abiisse, superuacuum est hoc 


DE RERUM UNIVERSITATIBUS. 


[1rr. $$ 9717. 


the gentiles to the succession. Who 
are gentiles was explained in the 
first book, and as we then stated 
that the whole law relating to gen- 
tiles is obsolete, it is unnecessary to 


quoque loco de eadem re curiosius 


go into its details on the present 
tractare. 


occasion. 

$ 9. The term agnatio has already occurred (2 § 131, cf. 1, 156) 
in the exposition of testacy, where it denoted the birth of a suus 
heres, and in the doctrine of intestacy it has the same signification. 
The same persons who in relation to a common ancestor are sul 
heredes, in relation to one another are agnati. Agnates, accordingly, 
may be described as all the members of a family ; but then we must 
add that the family may either be actual or ideal, meaning by ideal 
either a family once actual but disintegrated by the death of the 
ancestor, or a family purely imaginary. While the common an- 
cestor survives, the bonds of agnation are close, and the family is 
actual ; after his death, when his descendants have formed separate 
families, all the members of those families are still agnates, because 
they are members of an ideal family which once was actual; and 
the descendants of those descendants are more remotely agnates, 
because, though never members of an actual family, they would 
have been so if the common ancestor had lived for, say, a hundred. 
or a thousand years. 

The words of the Twelve Tables creating title by agnation are 
as follow: Si intestato moritur cui suus heres nee escit, adgnatus 
proximus familiam habeto. ‘If a man die intestate leaving no 
self-successor, his nearest agnate (the nearest self-successor of one 
of his ancestors) shall have the succession.’ 

$10. Consanguinei, brothers or sisters of the same father, 
opposed to uterini, brothers or sisters by the same mother, are 
properly included among agnates, being agnates of the first degree; 
but sometimes the word ‘agnates’ specifically denotes the subse- 
quent degrees, and as females were only entitled to inherit by the 
first degree of agnation, § 14, the word ‘agnates’ was further 
limited to denote male agnates. Agnati autem sunt cognati virilis 
sexus per virilem descendentes, Paulus, Sent. Rec. 4, 8, 13. ‘ Agnates 
are male cognates related through males.' 

$12. If the nearest degree of agnates in existence repudiated 
the succession, or died before acceptance, the succession did not 
devolve to the next degree of agnates, but passed by a different title 


nr.$$9-17.]] DE AGNATORUM SUCCESSIONE. 299 


to a different order of claimants, namely, to cognates, or next of 
kin, Ulpian, 26,5. This rule was a scrupulous interpretation of the 
exact words of the Twelve Tables: Si intestato moritur cui suus 
heres nec escit, adgnatus prowimus familiam habeto. No innovation 
in this respect was introduced by the praetors, whose policy was to 
prefer the natural title of cognation to the civil title of agnation. 
Justinian, however, abolished the rule, and allowed a devolution 
through the degrees of agnation, on the ground that, as the burden 
of tutela devolved through the degrees of agnation, there ought to 
be a corresponding and compensating devolution of the advantages 
of inheritance, Inst. 3, 2, 7. This change, however, was deprived 
of importance by the subsequent Novella, 118, which introduced an 
entirely new system of succession, governed solely by cognatio. 

§ 13. The moment at which it is ascertained that the deceased is 
intestate will be separated by an interval from the moment of his 
decease, whenever the intestacy is caused by the repudiation or in- 
capacitation of the devisee, or the failure of the condition on which 
he was instituted. In this interval the nearest agnate may die, 
and a remoter agnate become the nearest agnate. It therefore was 
necessary to determine whether the title of nearest agnate is ac- 
quired at the moment of decease or of ascertained intestacy; and 
the latter moment was selected. If the death of the testator had 
been selected, then, if the nearest agnate died in the interval, there 
would be no heir; neither the then next agnate, as proxumus, the 
word used in the Twelve Tables, excludes successio graduum: nor 
the gentiles, as the words: si agnatus nec escit, exclude successio 
ordinum. 

§ 14. The limitation, m respect of females, of title by agnation 
to females who were agnates in the first degree (consanguineae) was 
not contained in the Twelve Tables, but introduced by the jurists as 
an interpretation of the lex Voconia (B.c. 168), Paulus, Sent. Rec. 
4,8, 22. Inst. Just, 3,2,3. The harshness of this limitation was 
mitigated by the praetors, who introduced title by cognation, and 
allowed females of remoter degrees of agnation to succeed in the 
order of cognates in default of successors by title of agnation ; but 
Justinian totally abolished the limitation, and restored the rule of 
the Twelve Tables, allowing females to succeed in the order of 
agnates, however remote might be their degree of agnation, pro- 
vided that no nearer degree was in existence. 

The celebrated Novella, 118, as above stated, totally abolished 


300 


DE RERUM UNIVERSITATIBUS.  [11.$$18-38. 


title by agnation, and made succession by intestacy entirely de- 
pendent on the degrees of cognation or natural relationship. 


BONORUM POSSESSIO INTESTATI. 


$ 18. Hactenus lege Xii tabula- 
rum finitae sunt intestatorum here- 
ditates. quod ius quemadmodum 
strictum fuerit, palam estintellegere. 

$19. Statim enim emancipati 
liberi nullum ius in hereditatem 
parentis ex ea lege habent, cum de- 
sierint sui heredes esse. 


$20. Idem iuris est, si ideo liberi 
non sint in potestate patris, quia 
sint cum eo ciuitate Romana donati, 
nec ab imperatore in potestatem 
redacti fuerint. 


$21. Item agnati capite deminuti 
non admittuntur ex ea lege ad here- 
ditatem, quia nomen agnationis 
capitis deminutione perimitur. 


$ 22. Item proximo agnato non 
&deunte hereditatem nihilo magis 
sequens iure legitimo admittitur. 


$23. Item feminae agnatae quae- 
cumque consanguineorum gradum 
excedunt, nihil iuris ex lege habent. 


$ 24. Similiter non admittuntur 
cognati qui per feminiui sexus per- 
sonas necessitudine iunguntur; adeo 
quidem, ut nec inter matrem et 
filium filiamue ultro citroque here- 
ditatis capiendae ius conpetat, prae- 
terquam si per in manum conuen- 
lionem consanguinitatis iura inter 
eos constiterint. 

$ 25. Sed hae iuris iniquitates 
edicto praetoris emendatae sunt. 


$ 26. Nam beros omnes qui le- 
gitimo iure deficiuntur, uocat ad 
hereditatem, proinde ac si in potes- 


$ 18. These are all the provisions 
in the law of the Twelve Tables 
for intestate devolution, and how 
barshly they operated is petent. 

$ 19. For instance, emancipated 
children forfeit all title to the suc- 
cession of their parent by being 
divested of the character of self- 
BUCCESSOTS. 

§ 20. So do children whose free- 
dom from the power of their parent 
only resulted from their receiving 
jointly with their father a donation 
of Roman citizenship (1 § 94), with- 
out a fiat of the emperor subjecting 
them to parental power. 

§ 21. Again, agnates who have 
descended in status are barred from 
the succession under the statute, 
title by agnation being extinguished 
by descent in status. 

$ 22. And if the nearest agnate 
renounces a succession the next de- 
gree, according to the statute, is not 
a whit the more entitled to succeed. 

§ 23. Female agnates beyond the 
degree of sisters by the same father 
have no title to succeed under the 
statute [as restricted by the anti- 
female spirit which found expres- 
sion in the lex Voconia]. 

§ 24. Cognates who trace their 
kin through females are similarly 
barred, so that even a mother and 
a son or daughter have no re- 
ciprocal right of succession, unless 
by subjection to the hand of the 
husband the mother has become 
& quasi gister to her children. 


$ 25. But to these legal inequali- 
ties the edict of the praetor ad- 
ministers a corrective. 

$ 26. All children whose statutory 
title fails are called by the praetor 
to the succession, just as if they had 


nr$$18-38.] BONORUM POSSESSIO INTESTATI. 


iate parentis mortis tempore fuis- 
sent, siue soli sint siue etiam sui 
heredes, id est qui in potestate 
petris fuerunt, concurrant. 


$ 27. Agnatos autem capite de- 
minutos non secundo gradu post 
suos heredes uocat, id est non eo 
gradu uocat quo per legem uocaren- 
tur, si eapite deminuti non essent, 
sed tertio proximitatis nomine; 
licet enim capitis deminutione ius 
legitimum perdiderint, certe cog- 
nationis iura retinent. itaque si 
quis alius sit qui integrum ius ag- 
nationis habebit, is potior erit, 
etiamsi longiore gradu fuerit. 


$ 28. Idem iuris est, ut quidam 
putant, in eius agnati persona, qui 
proximo agnato omittente heredita- 
tem nihilo magis iure legitimo ad- 
mittitur. sed sunt qui putant hunc 
eodem gradu a praetore uocari, quo 
etiam per legem agnatis hereditas 
datur. 

$ 29. Feminae certe agnatae quae 
consanguineorum gradum excedunt, 
tertio gradu uocantur, id est si ne- 
que suus heres neque agnatus «ullus 
erit. 

$ 30. Eodem gradw uocantur et- 
iam eae personae quae per feminini 
sexus personas copulatae sunt. 

$ 31. Liberi quoque qui in ad- 
optiua familia sunt, ad naturalium 
parentum hereditatem hoc eodem 
gradu uocantur. 

$ 32. Quos autem praetor uocat 
ad hereditatem, hi heredes ipso qui- 
dem iure non | fiunt; nam praetor 
heredes facere non potest ; per legem | 
enim tantum uel similem iuris con- 
sittutionem heredes fi|unt, ueluti per 
senatusconsultum et constitutionem 
principalem. sed cum es praetor 


301 


been in the power of their parent 
at tbe time of his decease, whether 
they come alone or in concurrence 
with self-successors, that is, with 
other children who were subject to 
the power of the parent. 

§ 27. Agnates who have de- 
scended in status are called by the 
praetor, not indeed in the next 
degree to self-successors, that is, in 
the order in which the statute would 
have called them but for their loss 
of status, but in the third rank 
under the designation of cognates 
(next of kin); for though their 
descent in status has blotted out 
their statutory title, they neverthe- 
leas are still entitled as cognates ; 
but if another person exists with 
unimpaired title by agnation, he is 
called in preference, although he may 
be an agnate in a remoter degree. 

§ 28. The rule is similar, accord- 
ing to some, in respect of the re- 
moter agnate who has no statutory 
title to succeed on the renunciation 
of a nearer agnate; according to 
others, the praetor calls him to the 
succession in the order allotted by 
the statute to agnates. 

$ 29. Female agnates, at all 
events, beyond the degree of sisters 
are called in the third degree, that 
is to say, after self-successors and 
other agnates. 

§ 30. So are those persons who 
trace their kindred through females. 


§ 31. Children in an adoptive 
family are called to succeed their 
natural parents in the same order. 


§ 32. Those whom the praetor 
calls to a succession do not become 
successors at civil law, for the prae- 
tor cannot make & successor; only 
& law or similar ordinance can con- 
stitute a successor, such as a decree 
of the senate or an imperial con- 
stitution; the praetor's grant of 


302 


(dat bonorum possessionem), loco 
heredum constituuntur. 

$ 33. |Adhuc autem etiam alios 
conplures gradus praetor facit in| 
bonorum possessionibus dandis, dum 
id ag:t, ne quis sine successore | 
mortatur. de quibus in his com- 
mentariis consulto | non agimus, cum 
hoc ius totum propriis commentariis 
exlecutt simus. 


$ 33a. Hoc solum admonuisse 
sufficit | | tabulis 
hereditatem |— inutdt- 
osum per |in manum conuen- 
tionem iura consanguinitates na|cta 
| fratre 
—|—(5 uersus in C legi nequeunt) 

(8 wersus in C legi nequeunt) 

| nam |_| 

—|——— hereditas non pertine-| 
(8 uersus in C legi nequeunt) | 
. §336, Aliquando tamen neque 
emendandi neque inpugnandi ueteris 
turis sed | magis confirmandi gratia 
pollicetur | bonorum — possessionem. 
nam iliis quoque | qui recte facto 
testamento heredes. institutt sunt, | 
dat secundum tabulas bonorum pos- 
gesstonem. 

$34. dem ab intestato heredes 
suos et agnatos ad bonorum posses- 
sionem uocat. quibus casibus bene- 
ficium eius in eo solo uidetur ali- 
quam utilitatem habere, ut ?$ qui 
ita bonorum possessionem petit, 
interdicto cuius principium est 
QVORVM BONORYM uti possit. culus 
interdicti quae sit utilitas, suo loco 
proponemus, alioquin remota quo- 
que bonorum possessione ad eos 
hereditas pertinet iure ciuili. 


















































$ 35. Ceterum saepe quibusdam 
ita datur bonorum possessio, ut is 
cui data sit, (non) optineat heredi- 
tatem ; quae bonorum possessio di- 
citur sine re. 

$36. Nam si uerbi gratia iure 


“DE RERUM UNIVERSITATIBUS. 


[rr. $$ 18-38. 


possession only makes the grantee 
& quasi successor. 

$ 33. Several additional grades 
of grantees of possession are recog- 
nized by the praetor in his desire 
that no one may die without a suc- 
cessor; but I forbear to examine 
them on the present occasion, be- 
cause I have handled the whole sub- 
ject of title by descent in a separate 
treatise devoted to this matter. 

§ 33a. [Sc. Tertullianum.] 


$ 33 b. Sometimes, however, the 
object of the praetor in granting 
possession is rather to confirm the 
old law than to amend or contradict 
it, for he likewise gives juxta- 
tabular possession to those who 
have been instituted heirs in a 
legally valid will. 

§ 34. Besides these grantees, 
when a man dies intestate, the 
praetor grants possession to self- 
successors and agnates, the only ad- 
vantage they derive from the grant 
being that it entitles them to the 
interdict beginning with the words : 
* Whatsoever portion of the goods’ 
(the use of which will be explained 
in due time and place, 4 $ 144), for 
independently of the grant of pos- 
session, they are entitled to the 
inheritance by the civil law. 

$ 35. Possession is often granted 
to a person who will not have quiet 
enjoyment, and is then said to be 
ineffective, 


$ 36. For instance; if an heir 


1m. §§ 18-38.] BONORUM POSSESSIO INTESTATI. 


facto testamento heres institutus 
creuerit hereditatem, sed bonorum 
possessionem secundum tabulas tes- 
tamenti petere noluerit, contentus 
eo quod iure ciuile heres sit, nihilo 
minus ii qui nullo facto testamento 
ad intestati bona uocantur, possunt 
petere bonorum possessionem; sed 
sine re ad eos [hereditas] pertinet, 
cum testamento scriptus heres euin- 
cere hereditatem posait. 

$ 37. Idem iuris est, si intestato 
aliquo mortuo suus heres no|luerit 
petere bonorum possessionem, con- 
tentus legitimo ture let agnato 
conpetit quidem bonorum possessio, 
sed sine re, quia euinci hereditas 
a suo herede potest. et [illud] con- 
uenienter, si ad agnatum iure ciuili 
pertinet hereditas et is adierit here- 
ditatem, sed bonorum possessionem 
petere noluerit, et si [quis ex proxi- 
mis] cognatus petierit, sine re habe- 
bit bonorum possessionem propter 
eandem rationem. 

$ 38. Sunt et alii quidam similes 
casus, quorum aliquos superiore 
commentario tradidimus. 





308 


appointed by a duly executed will 
accepts the inheritance, but omits 
to demand juxta-tabular possession, 
contenting himself with his title 
at civil law, those who without a 
will would be entitled by descent 
may nevertheless obtain a grant of 
intestate possession, but the grant 
will be ineffective, because they can 
be evicted by the testamentary heir. 


$ 37. The same happens when & 
man dies intestate and a self-suc- 
cessor omits to demand possession, 
contenting himself with his statutory 
title; for an agnate may obtain a 
grant of intestate possession, but it 
will be ineffective, because he can 
be evicted by the self-successor. 
Similarly, if an agnate entitled by 
civil law accepts the succession but 
omits to demand possession, & cog- 
nate can obtain a grant of intestate 
possession, but only ineffectively, 
for the same reason. 

§ 38. There are other similar 
cases, some of which were mentioned 
in the preceding book. 


§ 25. To the divergence of the juristic (agnatio) and natural 
(cognatio) families, to the desire, that is, to correct the non- 
natural devolution of successions, Sir Henry Maine attributes the 
introduction in Roman jurisprudence of Testamentary dispositions. 


(Ancient Law, Ch. vi.) 


§ 82. The praetor, as executive power : 
(1) Gave possession to the person entitled by law, that is, en- 


foreed the rights conferred on persons by the law; e.g. he gave 
juxta-tabular possession to the testamentary heir, § 86, or contra- 
tabular possession to praetermitted children, 2 § 125, or ab in- 
testato possession to the suus heres or the agnate, § 37. 

(2) He also gave possession to persons on whom the law had 
conferred no rights, that is, he supplemented the law; e.g.in 
default of sui heredes and agnates he granted ab intestato possession 
to cognates; he gave juxta-tabular possession to the devisee under 
@ will invalid at Civil law, because the testator had been incapaci- 
tated at some period between the execution of his will and his 





304 DE RERUM UNIVERSITATIBUS. [a §§ 18-38. 


decease: this possession, however, was ineffective (sine re) against 
any person entitled ab intestato by the Civil law, 2 § 149, and 
Ulpian, 23, 6. 

(3) He sometimes gave possession adverse to rights which the 
law had conferred on other persons, that is, he contradicted or 
corrected the law; e.g. he gave juxta-tabular possession to the 
devisee under a will invalid at Civil law, from want of mancipation 
or nuncupation, 2 6 149, He gave juxta-tabular possession to the 
afterborn stranger (postumus alienus), Inst. 8, 9, pr. who, as an 
uncertain person, could not be instituted by the Civil law, 2 § 242; 
and he gave contra-tabular possession to the emancipated child 
passed over in silence by a testator, 2 § 185. 

As in the two latter functions of supplementing and correcting 
the law, the praetor did what is elsewhere performed by courts of 
equity, we have sometimes translated the contrasted terms heres and 
bonorum possessor by the terms ‘legal successor’ and ‘equitable 
successor.’ 

The equitable or praetorian successor could not sue or be sued 
by the direct actions of the Civil law, but only by fictitious actions, 
4684. The claim of a succession founded on a title at Civil law 
was called hereditatis petitio; a claim founded on a purely prae- 
torian title, e. g. cognation, was pursued by the Interdict Quorum 
bonorum, or, in the latest period, by possessoria hereditatis petitio, 
' Dig. 5, 5, 1. Such at least is Savigny’s view, who makes no 
essential difference between the Interdict Quorum bonorum and 
Possessoria hereditatis petitio. According to Vangerow, $ 509, the 
Interdict was confined to the provisional purpose of obtaining 
Possession: and Possessoria hereditatis petitio was the means of 
claiming the inheritance when a claimant (e. g. cognatus or emanci- 
patus) had a merely praetorian title; as Hereditatis petitio was 
the means of claiming the civil inheritance. Accordingly the 
Interdict could not be brought, like Hereditatis petitio, against 
debtors to the inheritance ; but only against possessors of corporeal 
hereditaments. Interdicto Quorum bonorum debitores hereditarii 
non tenentur, sed tantum corporum possessores, Dig. 4, 8, 2, 2. 
Debtors would be pursued by Possessoria hereditatis petitio, if they 
disputed the creditor's right of succession; by actiones fictitiae, 
4 § 84, if this was admitted. 

$38. Huschke supposes that after euficit Gaius explained the 
provisions of the S. C. Tertullianum. The orders or grades or 


mz. § 18-38.} BONORUM POSSESSIO INTESTATI. 305 


classes to whom the praetor successively granted bonorum possessio 
in intestacy were as follow : 

(1) Children (liberi), including not only sui heredes, but also 
emancipated children, § 26, on condition that the latter brought 
their goods into hotehpot (collatio bonorum), Dig. 37, 6. Children 
given in adoption were not admitted in this order, but in the third 
order of cognates, § 31. 

(2) Statutory heirs (legitimi), i.e. all who were entitled to in- 
herit under any statute; e.g. agnates who were entitled under the 
Twelve Tables ; mothers, who were entitled to succeed their children 
under the Sc. Tertullianum ; children, who were entitled to succeed 
their mothers under the Sc. Orphitianum ; and sui heredes who had 
repudiated or omitted to demand possession as members of the first 
order within the interval allowed, namely, a year. 

(3) Next of kin (proximi cognati) including those who had 
neglected to claim in the first or second order. 

(4) Husband and wife, when the wife is not in manu. A wife 
in manu would be quasi daughter and therefore sua heres and 
entitled to succeed with liberi in the first order. 

These various grades of title are called unde liberi, unde legitimi, 
unde cognati, unde vir et uxor, phrases which properly denote 
those articles of the edict in which these classes are summoned 
to the succession: ea pars edicti unde liberi vocantur, &c., but 
are used by Roman lawyers as epithets of intestate bonorum 
possessio. 

The degrees of cognation in a direct line are the number of 
generations that separate a descendant from an ascendant: to 
compute the degrees of collateral cognation we must add the degrees 
of direct cognation. Thus a man is one degree from his father, 
and therefore two from his brother and three from his nephew. 
He is two degrees from his grandfather, and therefore three from 
his uncle and four from his first cousin or cousin german (con- 
sobrinus). He is three degrees from his great-grandfather, and 
therefore four from his great-uncle and five from his great-uncle's 
son (propior sobrino) and six from his second cousin (sobrinus), that 
is, his great-uncle's grandson, for second cousins are the children 
of first cousins. He is seven degrees from his second cousin's 
children, and this is the only case in which the seventh degree 
of cognation was recognized as giving a title to succeed in in- 
testacy, the law only recognizing in other lines the sixth degree of 

X 





' DE RERUM UNIVERSITATIBUS. 


eognation. In English law collateral relationship is a title to 
inheritance or succession without any limit. 

$ 36. Originally the person entitled to the praetorian succession 
was required to address a formal demand to the magistrate: but 
under Justinian any signification of intention to accept the suc- 
cession was sufficient without a demand. The interval allowed 
for this signification of intention (agnitio) to a parent or child 
of the defunct was a year, to other claimants a hundred days. 
If a person in a superior order or degree omitted to signify his 
acceptance in the interval allowed, the succession then devolved 
to the next order or degree. If the person who thus omitted to 
signify acceptance had only a praetorian title to the succession, his 
right was entirely forfeited by the omission; but if he was entitled 
at civil law he could evict the bonorum possessor, who accord- 
ingly was said to have only a nugatory or ineffective possession 
(sine re). 

§ 38. We have already seen that the devisee under an un- 
authorised will of a female, though he obtained juxta-tabular pos- 
session, might be evicted by the person entitled as agnate, 2 § 119, 
and that a devisee under a praetorian will might be evicted by a 
devisee under a prior civil will or by a person entitled as agnate, 
unless the sole informality of the praetorian will, which rendered it 
invalid as a civil will, was the omission of mancipation or nuncu- 
pation, 2 § 149. 


306 [xu $$ 39-54, 


DE SUCCESSIONE LIBERTORUM CIVIUM ROMANORUM. 


$ 39. Nunc de libertorum bonis $ 39. Succession to freedmen next 
uideamus. demands our notice. 


§ 40. Olim itaque licebat liberto 
patronum suum inpune testamento 
praeterire. nam ita demum lex xit 
tabularum ad hereditatem liberti 
uocabat patronum, si intestatus 
morteus esset libertus nullo suo 
herede relicto. itaque intestato quo- 
que mortuo liberto, si is suum here- 
dem reliquerat, nihil in bonis eius 
patrono iuris erat. et siquidem ex 
naturalibus liberis aliquem suum 
heredem reliquisset, nulla uidebatur 
esse querella ; si uero uel adoptiuus 
filius filiaue uel uxor quae in manu 
esset, sua heres esset, aperte iniquum 
erat nihil iurís patrono superesse. 


$ 40. Freedmen were originally 
allowed to pass over their patron 
in their testamentary dispositions. 
By the law of the Twelve Tables 
the inheritance of a freedman only 
devolved on his patron when he 
died intestate and without leaving 
a self-successor, If he died intes- 
tate but left a self-successor, the 
patron was excluded, and if the 
self-successor was a natural child, 
this was no grievance; but if the 
self-successor was an adoptive child 
or a wife in the hand, it was hard 
that they should bar all claim of the 
patron. 


rr. $$ 39-54.] 


$ 41. Qua de causa pcstea prae- 
toris edicto haec iurts iniquitas 
emendata est. siue enim faciat 
testamentum libertus, iubetur ita 
testarij ut patrono suo partem 
dimidiam bonorum suorum relin- 
quaf, et si aut nihil aut minus 
quam partem dimidiam reliquerit, 
datur patrono contra tabulas testa- 
menti partis dimidiae bonorum 
possessio ; si uero intestatus moria- 
tur suo herede relicto adoptiuo filio 
(uel) uxore quae in manu ipsius 
esset, uel nuiw quae in manu filii 
eius fuerit, datur aeque patrono 
aduersus hos suos heredes partis 
dimidise bonorum possessio. pro- 
sunt autem liberto ad excludendum 
patronum naturales liberi, non so- 
lum quos in potestate mortis tem- 
pore habet, sed etiam emancipati 
et in adoptionem dati, si modo 
aliqua ex parte heredes scripti sin, 
aut praeteriti contra tabulas testa- 
menti bonorum possessionem ex 
edicto petierint; nam exheredati 
nullo modo repellunt patronum. 

$ 42. Postea lege Papia aucta 
sunt iura patronorum, quod ad locu- 
pletiores libertos pertinet. cautum 
est enim ea lege, ut ex bonis eius 
qui sestertiorum centum milium 
plurisue patrimonium reliquerit, et 
peuciores quam tres liberos habebit, 
siue is testamento facto siue intes- 
tato moriwus erit, uinlis pars 
patrono debeatur. itaque cum unum 
filium uvamue filiam heredem reli- 
querit libertus, proinde pars dimidia 
petrono debetur, ac si sine ullo filio 
filiaue moreretur; cum uero duos 
duasue heredes reliquerit, tertia 
pers debetur ; si tres 1elinquat, re- 
pellitur patronus. 


$ 43. In bonis libertinarum nul- 
lam iniuriam &ntiquo iure patie- 
bantur patroni cum enim hae in 
petronorum legitima tutela essent, 


LIBERTI CIVES ROMANI. 


307 


$ 41. Accordingly, at a later 
period, the praetor's edict corrected 
this injustice of the law. If a freed- 
man makes a will, he1s commanded 
to leave a moiety of his fortune to 
his patron; and if he leaves him 
nothing, or less than a moiety, the 
patron can obtain contra-tabular 
possession of a moiety from the 
praetor. If he die intestate, leav- 
ing as self-successor an adoptive 
sen or & wife in his hand or a son's 
wife in the hand of his son, the 
patron can obtain even against these 
self-successors intestate possession 
of a moiety from the praetor. The 
freedman is enabled to exclude the 
patron if he leaves natural children, 
whether in his power at the time of 
his death or emancipated or given 
in adoption, provided he leaves them 
any portion of the succession, or 
that, being passed over in silence, 
they demand contra-tabular pos- 
session in pursuance of the edict ; 
for, if they are disinherited, they do 
not avail to bar the patron. 

§ 42, At a still later period the 
lex Papia Poppaea augmented the 
rights of the patron against the 
estate of more opulent freedmen. 
By the provisions of this law when- 
ever a freedman leaves property of 
the value of a hundred thousand 
sesterces and upwards, and not so 
many as three children, whether he 
dies testate or intestate, a portion 
equal to that of & single child is due 
to the patron. Accordingly, if a 
single con or daughter survives, half 
the estate is claimable by the patron, 
just as if the freedman had died 
childless ; if two. children iubent, 
& third of the property belongs to 
the patron; if three children sur- 
vive, the patron is excluded. 

$ 43. In successions to freed- 
women no wrong could possibly be 
done to the patron under the primi- 
tive law ; for, as the patron was sta- 


X2 





308 


non aliter scilicef testamentum fa- 
cere poterant quam patrono auctore. 
itaque siue auctor ad testamentum 
faciendum factus erat | re- 
lict fa|ctus erat, sequebatur 
hereditas ; si uero auctor | ei factus 
non erat, et intestata liberta morie- 

















bater, | ad per|tinebat. nec 
enim ullus oim | posset. pa- 
tronum a bonis libertae re|- 


pellere. 

§ 44. Sed postea lex Papia cum 
quattuor liberorum iure libertinas 
tutela patronorum liberaret, et eo 
modo concederet eis etiam sine tu!- 
toris auctoritate condere testamen- 
tem, prospexit, | ut pro numero 
liberorwn quos liberta mortis tem- 
poe habuerit, uirilis pars patrono 
debeatur. er|go ex bonis eius quae 
| liberos reli la pos- 
| hereditas ad patronum 








sid 
pertinet. 





§ 45. Quae diximus de patrono, 
eadem intellegemus et de filio pa- 
troni ; item de nepote ex filio (et de) 
pronepofe ex nepote flio nato pro- 


gnato. 

$ 46. Filia uero patroni et neptis 
ex filio et proneptis ez nepote filio 
nato prognata olim quidem eo iure 
quod lege xii tabularum | patrono 
datum est, sexus | patron- 
orum liberos testamenti li- 
berti (aut) ab intestato contra 
filium adoptiuum uel uxorem nu- 
rumue quae in manu fuerit, bonorum 
possessionem petat, trium liberorum 
iure lege Papia consequitur; aliter 
hoc ius non habet, 








$ 47. Sed ut ex bonis libertae 
^tae quattuor liberos habentis 
' pars ei debeatur, ne liber- 
quidem iure consequitur, ut 


DE RERUM UNIVERSITATIBUS. 


[1n $$ 39-54. 


tutory guardian of the freed woman, 
ber will was not valid without his 
authorization, so that, if he author- 
ized & will, he either was therein 
instituted heir, or, if not, had only 
himself to blame: if he did not 
authorize a will the freedwoman 
died intestate, and he was assured 
of the succession, for she could leave 
no self-successor to bar the claim 
of the patron. 

§ 44. But when at a subsequent 
period, by the enactment of the lex 
Papia, four children were a title 
that released a freedwoman from the 
guardianship of her patron, so that 
his autborization ceased to be ne- 
cessary to the validity of her will, 
the same law gave the patron a 
contra-testamentary claim to a por- 
tion of her estate equal to that of a 
single child. If she died worth roo 
sestertia, the lex Papia gave him 
& contra-testamentary claim to 
half [1]. If she died intestate, what- 
ever she left, he is her sole successor. 

§ 45. What has been said of the 
patron applies to a son of the patron, 
a grandson by a son, a great grand- 
son by a grandson by a son. 


$ 46. Although a daughter of a 
patron, a granddaughter by a son, 
a great-granddaughter by a grand- 
son by a son have under the statute 
of the Twelve Tables identical rights 
with the patron, the praetorian edict 
only calis the male issue to the 
succession : but the lex Papia gives 
& daughter of the patron a contra- 
testamentary or intestate claim 
against an adoptive child, ora wife, 
or a son’s wife to a moiety of the 
heritage if she is entitled as mother 
of three children; a daughter not 
so entitled has no claim. 

§ 47. In the succession to a tes- 
tate freedwoman mother of four chil- 
dren a patron’s daughter mother of 
three children is not always entitled 


rn. $$ 39-54. ] 


quidam putant. sed tamen inte- 
stata liberta mortua uerba legis 
Papiae faciunt, ut ei uirilis pars 
debeatur. si uero testamento facto 
mortua sit liberta, tale ius ei datur, 
quale datum est contra tabulas 
testamenti liberti, id est quale et 
uirilis sexus patronorum liberi con- 
tra tabulastestamenti liberti habent; 
quamuis parum diligenter ea pars 
legis scripta sit. 


$ 48. Ex his apparet extraneos 
heredes patronorum longe remotos 
esse ab omni eo iure, quod uel in 
tntestatorum bonis uel contra tabu- 
las testamenti patrono conpetit. 

$ 49. Putronse olim ante legem 
Papiam hoc solum ius habebant in 
bonis libertorum, quod etiam pa- 
tronis ex lege Xii tabularum datum 
est. nec enim ut contra tabulas 
testamenti ingrati liberti uel ab in- 
testato contra filium adoptiuum uel 
uxorem nurumue bonorum posses- 
sionem partis dimidiae peterent, 
praetor similiter ut de patrono li- 
berisque eius curabat. 


$ 50. Sed lex Papia duobus 
liberis honoratae ingenuae patronae, 
hbertinae tribus, eadem fere iura 
dedit quae ex edicto praetoris pa- 
troni habent; tnum uero liber- 
orum iure honoratae ingenuse pa- 
tronae ea iura dedit, quae per ean- 
dem legem patrono data sunt; 
libertinae autem patronae non idem 
iuris praestitit. 

$ 51. Quod autem ad libertin- 
arum bona pertinet, siquidem in- 
testatae decesserint, nihil noui pa- 
tronae liberis honoratae lex Papia 
praestat. itaque si neque ipsa 
patrona neque liberta capite demi- 
nuta sit, ex lege XII tabularum ad 


LIBERTI CIVES ROMANI. 


309 


[like his sons] to the portion of a 
child, as some suppose : but, if the 
freed woman die intestate, the letter 
of the lex Papia gives her the portion 
of a child; if the freedwoman die 
testate, the patron's daughter has 
the same title to contra-tabular 
possession as she would have against 
the will of a freedman, that is, as 
the praetorian edict confers on a 
patron and his sons in respect of the 
heritage of a freedman, [viz. a claim 
to half against all but natural chil- 
dren] though this portion of the law 
is carelessly written. 

§ 48. It is apparent that the ex- 
ternal heir of a patron is utterly 
destitute of title by patronage, 
whether a freedman die testate or 
intestate. 

§ 49. Patronesses, before the lex 
Papia was passed, had only the 
same rights against the estate of 
their freedmen as patrons under the 
statute of the Twelve Tables: nei- 
ther by contra-tabular possession 
against a will of an ungrateful 
freedman, nor by intestate posses- 
sion against the intestate claim of an 
adoptive child or a wife or a son’s 
wife could they, like the patron or 
the patron’s son, obtain a moiety of 
a heritage left by a freedman. 

§ 50. But subsequently by the 
lex Papia two children entitle a 
freeborn patroness, three children 
a manumitted patroness, to nearly 
the same rights as the edict confers 
on & patron; and three children 
entitle a freeborn patroness to the 
rights which the lex Papia confers 
on & patron: a manumitted pa- 
troness is never so entitled. 

§ 51. As to the successions of 
freedwomen who die intestate, no 
new right is conferred on a patroness 
through the title of children by the 
lex Papia [which in this case only 
mentions patroni filia, § 47]; accord- 
ingly, if neither the patroness nor 





310 


eam hereditas pertinet et exclud- 
untur libertae liberi; quod iuris 
est etiam si liberis honorata non sit 
patrona; numquam enim, sicut su- 
pra diximus, feminae suum heredem 
habere possunt. si uero uel huius 
uel illius capitis deminutio inter- 
uenlat, rursus liberi libertae ex- 
cludunt patronam, quia legitimo 
iure capitis deminutione perempto 
euenit, ut liberi libertae cognationis 
iure potiores habeantur, 


$ 52. Cum autem testamento 
facto moritur liberta, ea quidem 
patrona quae liberis honorata non 
est, nihil iuris babet contra libertae 
testamentum; ei uero quae liberis 
honorata sit, hoc ius tribuitur per 
legem Papiam, quod habet ex edicto 
patronus contra tabulas liberti. 


$ 53. |Eadem lex patronae filio 
liberis honorato————— | patroni iura 
dedit; sed in huius persona etiam 
unius filà filiaeue ius sufficit. 


$ 54. Hactenus omnia iura 
quasi per indicem tetigisse satis est ; 
alioquin  diligentior interpretatio 
propriis commentariis exposita est. 


DE RERUM UNIVERSITATIBUS. 


(aur. $$ 39-54. 


the freedwoman has descended in 
status [$ 84, comm.], the law of 
the Twelve Tables transmits the 
Succession to the patroness, and 
excludes the freed woman's children, 
even when the patroness is child- 
less; for & woman, as before re- 
marked, can never have a self-suc- 
cersor: but if either of them has 
descended in status, the children 
of the freedwoman exclude the pa- 
troness, because her statutory title 
is obliterated by the descent in 
status, and the children are admit- 
ted as next of kin. 

§ 52. When a freedwoman dies 
testate, a patroness not entitled by 
children has no right of contra- 
tabular possession: but a patroness 
entitled by children has conferred 
upon her by the lex Papia the same 
right to a moiety by contra-tabular 
possession as the praetorian edict 
confers on the patron against the 
heritage of a freedman. 

§ 53. By the same law a pa- 
troness’s son duly entitled by 
children has the rights of a patron 
[ patroness? |, but in this case one son 
or daughter is a sufficient title. 

§ 54. This summary indication 
of the rules of succession to freed- 
men and freedwomen who have 
the plenary franchise may suffice 
for the present occasion: a more 
detailed exposition is to be found 
in my separate treatise on this 
branch of law. 


§ 64. Gaius wrote a treatise in fifteen books, Ad leges Juliam et 


Papiam, from which there are thirty extracts in the Digest ; another 
in ten books, Ad edictum urbicum; and another in three books, 
De manumissionibus : to any of which he may allude. 


DE BONIS LIBERTORUM LATINORUM. 


$ 55. Sequitur ut de bonis La- 
tinorum libertinorum dispiciamus. 
$ 56. Quae pars iuris ut mani- 
festior fiat, admonendi sumus, id 


$ 55. We proceed to the succes- 


sions of Latini Juniani. 


$ 56. To understand this branch 


of law we must recollect what has 


quod alio loco diximus, eos qui nunc been already mentioned (1 $ 22), 


ri. $$ 55—76.] 


Latini Iuniani dicuntur, olim ex 
iure Quiritium seruos fuisse, sed 
auxilio praetoris in libertatis forma 
Beruari solitos; unde etiam res 
eorum peculii iure ad patronos per- 
tinere solita est; postea uero per 
legem Iuniam eos omnes quos prae- 
tor in libertate tuebatur, liberos 
esse coepisse et appellatos esse 
Latinos Iunianos; Latinos ideo, 
quia lex eos liberos perinde esse 
uoluit atque [si essent ciues Romani 
ingenui] qui ex urbe Roma in 
Latinas colonias deducti Latini colo- 
niarti esse coeperunt;  lunianos 
ideo, quia per legem Iuniam liberi 
facti sunt[, etiamsi non essent ciues 
Romani]. legis itaque Iuniae lator 
cum intellegeret futurum ut ea 
fictione res Latinorum defunctorum 
ad patronos pertinere desinerent, 
quia scilicet neque ut serui decede- 
rent, ut possent iure peculü res 
eorum ad patronos pertinere, neque 
liberti Latini hominis bona possent 
manumissionis iure ad patronos 
pertinere, necessarium existimauit, 
ne ie beneficium istis datum in in- 
patronorum conuerteretur, 
cner [uci], ut bona eorum pro- 
manumissores pertinerent, 
ac si lex lata non esset ; itaque iure 
quodammodo peculii bona Latino- 
rum ad manumissores ea lege per- 
tinent. 


$ 57. Vnde accidit ut longe 
differant ea iura quae in bonis 
Latinorum ex lege Iunia constituta 
sunt, ab his quae in hereditate 
ciuium Romanorum libertorum ob- 
seruantur. 

$ 58. Nam ciuis Romani liberti 
hereditas ad extraneos heredes pa- 
troni nullo modo pertinet; ad filium 
autem patroni nepotesque ex filio et 


LIBERTI LATINI. 


311 


that those who are called Latini 
Juniani were originally slaves by 
law of the Quirites, though main- 
tained by the praetor's protection 
in & condition of quasi freedom, so 
that their possessions belonged to 
their patrons by the title of pecu- 
lium. At a more recent period 
[A.n. 19], when the lex Junia Nor- 
bana was enacted, those whom the 
praetor had protected i in quasi free- 
dom became legally free, and were 
called Latini Juniani: Latini, be- 
cause the law assimilated their free- 
dom to that of freeborn citizens of 
Rome who, on quitting Rome for a 
Latin colony, became Latin colo- 
nists; Juniani, because the lex Junia 
gave them liberty without citizen- 
ship: and as the author of the lex 
Junia foresaw that the effect of this 
fiction would be that the goods of 
deceased Latini Juniani would cease 
to belong to the patron, as they 
would not be slaves at the time 
of their death, so that their goods 
should belong to the patron by the 
title of peculium, and the goods of 


& freeborn Latin could not devolve 


to him by title of manumission; he 
deemed it necessary, to prevent the 
favour to these freedmen from be- 
coming a wrong to the patron, to 
provide that their goods should 
belong to the manumitter in the 
same way as if the law had not 
been enacted. Consequently the 
goods of Latini Juniani belong to 
their manumitters by the title of 
quasi peculium. 

§ 57. Accordingly there are wide 
differences between the title to the 
goods of Latini Juniani under the 
lex Junia and the title to the suc- 
cessions of freedmen possessed of 
the plenary franchise. 

$ 58. When a freedman  pos- 
sessed of the full franchise dies, an 
external heir of the patron has no 
claim on his succession, while a son 


312 


pronepotes ex nepote (Jilio nato) 
prognatos omni modo pertinet, eti- 
amsi (a) parente fuerint exheredati. 
Latinorum autem bona tanquam 
peculia seruorum etiam ad extra- 
neos heredes pertinent, et ad liberos 
manumissoris exheredatos non per- 
tinent. 


$ 59. Item ciuis Romam liberti 
hereditas ad duos pluresue patronos 
aequaliter pertinet, licet dispar in 
eo seruo dominium habuerint ; bona 
wero Latinorum pro ea parte per- 
tinent, pro qua parte quisque eorum 
dominus fuerit. 


$ 60. Item in hereditate ciuis 
Romani liberti patronus alterius 
patroni filium excludit, et filius 
patroni alterius patroni nepotem 
repellit; bona autem Latinorum 
[et ad ipsum patronum] et ad 
alterius patroni heredem simul 
pertinent, pro qua parte ad ipsum 
manumissorem pertinerent. 


$61. Item si unius patroni tres 
forte liberi sunt et alterius unus, 
hereditas ciuis Romani liberti in 
capita diuiditur, id est tres fratres 
ires portiones ferunt et unus quar- 
tam; bona uero Latinorum pro ea 
parte ad successores pertinent, pro 
qua parte ad ipsum manumissorem 
pertinerent. 


$ 62. Item si alter ex his patronis 
suàm partem in hereditate ciuis 
Romani liberti spernat, uel ante 
moriatur quam cernat, tota heredi- 
tas ad alterum pertinet; bona autem 
Latini pro parte defictentis patroni 
caduca fiunt et ad populum per- 
tinent. 


DE RERUM UNIVEBSITATIBUS. 


[ur. $$ 55-76. 


of the patron, & grandson by & son 
a great-grandson by a grandson by 
a son, have an indefeasible claim 
even after disinheritance ; whereas, 
when a Latinus Junianus dies, his 
goods are transmitted to his patron's 
external heir, and the claim of the 
patron’s children is barred by dis- 
inheritance. 

§ 59. A freedman with the ple- 
nary franchise leaves several patrons 
his cosuccessors in equal portions, 
in however unequal proportions they 
had been his proprietors ; whereas 
the goods of a Latinus Junianus 
belong to his patrons in the ratio 
of the property which they had in 
him when he was a slave. 

§ 60. In the succession to a freed- 
man who had the plenary franchise, 
one patron bars another patron's 
son, and & son of one patron bars 
another patron's grandson; whereas 
the goods of a Latinus Junianus 
belong to a patron and another pa- 
tron’s heir in the same proportions 
in which they would have belonged 
to the two patrons. 

§ 61. If one patron leave three 
sons, and another patron one, the 
succession of a freedman who had 
the plenary franchise is divided by 
the number of individuals ; that is 
to say, every one takes an equal 
portion ; whereas the goods of a 
Latinus Junianus belong to the sons 
of the patrons, not in their own 
right, but in right of representation ; 
that is to say, in the proportion in 
which they would have belonged to 
the original manumitters. ' 

$ 62. If one patron renounce his 
part in the inheritance of a freed- 
man who had the plenary franchise, 
or die before acceptance, the whole 
inheritance belongs to the other; 
but the goods of a Latinus J unianus 
that would have descended to a de- 
ceased patron are vacant and es- 
cheated to the state. 


1n. $$ 55-76. ] 


§ 63. Postea Lupo et Largo con- 
sulibus senatus censuit, ut bona 
Letinorum primum ad eum perti- 
nerent qui eos liberasset; deinde 
ad liberos eorum non nominatim 
exheredatos, uti quisque proximus 
esset ; tunc antiquo iure ad heredes 
eorum qui liberassent, pertinerent. 


§ 64. Quo senatusconsulto quidam 
(td) actum esse putant, ut in bonis 
Latinorum eodem iure utamur, quo 
utimur in hereditate ciuium Roma- 
norum libertinorum. idque maxime 
Pegaso placuit. quae sententia 
aperte falsa est. nam ciuis Romani 
liberti heredites numquam ad ex- 
traneos patroni heredes | pertinet, 
bona autem Latinorum [etiam] ex 
hoc ipso senatusconsulto non obstan- 
tibus liberis manumissoris etiam ad 
extraneos heredes pertinent. item 
in hereditate ciuis Romani liberti 
liberis manumissorie nulla exhere- 
datio nocet, in bonis Latinorum 
nocere nominatim factam exhereda- 
tionem ipso senatusconsulto signifi- 
catur. 


$64a. Uerius est ergo hoc solum 
eo senatusconsulto actum esse, ut 
manumissoris liberi qui nominatim 
exheredati non sint, praeferantur 
extraneis heredibus. 

$65. Itaque emancipatus filius 
petroni praeteritus quamuis contra 
tabulas testamenti parentis sui bo- 
norum possessionem non petierit, 
tamen extraneis heredibus in bonis 
Latinorum potior habetur. 


LIBERTI LATINI. 


313 


$ 63. At a later period, when 
Lupus and Largus were consuls, the 
senate decreed that the goods of a 
Latinus Junianus should belong in 
the first place to the manumitter, 
in the next to such issue of the pa- 
tron as are not individually disin- 
herited in the order of their proxi- 
mity, and, in default of these, should 
belong by the ancient rule of devo- 
lution to the external heir of the 
manumitter. 

$ 64. The effect of this senatus- 
consult is, according to some autho- 
rities, that the goods of a Latinus 
Junianus, are acquired by the same 
title as the succession of a freedman 
who has enjoyed the full franchise, 
and this was the doctrine of Pega- 
sus: but this opinion is clearly 
erroneous, for a freedman who has 
the full franchise never transmits 
his succession to an external heir 
of his patron; whereas the goods of 
a Latinus Junianus, by the express 
terms of the senatusconsult, in 
default of children of the manu- 
mitter devolve on his external heir. 
Again, in the succession of a freed- 
man who had the full franchise, the 
children of the manumitter are not 
barred by any form of disinherit- 
ance; whereas, in respect of the 
goods of a Latinus Junianus, they 
are barred by individual disinherit- 
ance by the express terms of the 
senatusconsult. 

§ 64a. The only true effect, then, 
of the senatusconsult is, that the 
manumitter's children in the absence 
of individual disinheritance take 
precedence of external heirs. 

$ 65. Accordingly, an emanci- 
pated son of the patron who is 
passed over in silence by his father, 
though he omits to impeach his 
father's wil and demand contra- 
tabular possession, takes precedence 
of an external heir in respect of the 
goods of a Latinus Junianus. 


314 


§ 66. Item filia ceterique sui 
heredes licet iure ciuili inter ceteros 
exheredati sint et ab omni heredi- 
tate patris sui summoweantur, tamen 
in bonis Latinorum, nisi nominatim 
a parente fuerint exheredati, poti- 
ores erunt extraneis heredibus. 


$ 67. Item ad liberos qui ab here- 
ditate parentis se abstinuerunt, 
nthilo minus bona Latinorum per- 
tinent; nam ht quoque exheredati 
nullo modo dici possunt, non magis 
quam qui testamento silentio prae- 
teriti sunt. 


§ 68. Ex his omnibus satis illud 
apparet, si is qui Latinum | fecerit, 
|—sse; hunc enim so- 
lum——in bonis Latinorum— 

(4 wersus in C legi nequeunt) — 
quaeritur, an exheredes 

(5 wersus in C legi nequeunt) 
| et libe | |—con- 

| —— bona Latinorum — 
|—est ut 


ab alteri | | | 
$ 69. Item illud quoque constare 
uidetur, si solos liberos ex | dispari- 
bus partibus patronus 
tant, ad eos pertinere, quia nullo 
interueniente extraneo herede sena- 
tusconsulto locus non est. 























Stat 























$ 70. Sed si cum liberis suis etiam 
extraneum heredem patronus rel 
querit, Caelius Sabinus ait tota bona 
pro uirilibus partibus ad liberos 
defuncti pertinere, quia cum extra- 
neus heres interuenit, non habet lex 
Iunia locum, sed senatusconsultum. 
Iauolenus autem ait tantum eam 
partem ex senatusconsulto liberos 
patroni pro uirilibus partibus habi- 
turos esse, quam extranei heredes 
ante senatusconsultum lege Iunia 
habituri essent, reliquas uero partes 


DE RERUM UNIVERSITATIBUS. 


[urr. $6 55-76. 


$66. Again, a daughter and other 
issue who can be disinherited at 
civil law in a mass and thereby 
effectively barred from all the suc- 
cession of their parent, in respect 
of the goods of a Latinus Junianus, 
in default of individual disinherit- 
ance, have priority over an external 
heir. 

§ 67. Children who abstain from 
the succession of their parent are 
entitled to the goods of his Latinus 
Junianus in spite of their absten- 
tion, because they cannot be said to 
be disinherited any more than chil- 
dren who are passed over by a tes- 
tator in silence. 

§ 68. From all these points it is 
sufficiently apparent that he who 
makes a Latinus Junianus. . . . 


$69. This also seems to be 
established, that if a patron has 
instituted his children as his sole 
heirs but in unequal portions, the 
property of a Latin belongs to them 
in the same unequal proportions, 
because in the absence of an external 
heir the senatusconsult has no ap- 
plication. 

$70. If thechildren of the patron 
are joint heirs with a stranger, 
Caelius Sabinus holds, that the 
totality of the goods of a Latinus 
Junianus devolves in equal portions 
to the children, because the exist- 
ence of an external heir brings them 
within the senatusconsult instead of 
the lex Junia. According to Javo- 
lenus, only that part will devolve 
under the senatusconsult in equal 
portions to the children of the pa- 
tron to which, before the senatus- 


rr. $$ 55-76. ] 


pro hereditariis partibus ad eos 
pertinere, 


$ 71. Item quaeritur an hoc 
senatusconsultum ad eos patroni 
liberos pertineat, qui ex filia nepteue 
procreantur, id est ut nepos meus 
ex filia potior sit in bonis Latini 
mei quam extraneus heres. item 
(an) ad maternos Latinos hoc 
senatusconsultum pertineat quae- 
ritur, id est ut in bonis Latini 
materni potior sit patronae filius 
quam heres extraneus matris. 
Cassio placuit utroque casu locum 
esse senatusconsulto. sed huius 
sententiam plerique inprobant, quia 
senatus de his liberis | Prtronartan] 
nihil sentiat, qui aliam familiam 
sequerentur. idque ex eo apparet 
quod nominatim exheredatos sum- 
mouet; nam uidetur de his sentire 
qui exheredari a parente solent, si 
heredes non instituantur; neque 
autem matri filium filiamue, neque 
suo materno nepotem neptemue, 
si eum eamue heredem non instituat, 
exheredare necesse est, siue de iure 
ciuili quaeramus, siue de edicto prae- 
toris, quo praeteritis liberis contra 
tabulas testamenti bonorum pos- 
sessio promittitur. 


$ 72. Aliquando tamen ciuis Ro- 
manus libertus tamquam Latinus 
moritur, uelut si Latinus saluo iure 
patroni ab imperatore ius Quiritium 
consecutus fuerit. nam, ut diuus 
Traianus constituit, si Latinus, 
inuito uel ignorante patrono ius 
Quiritium ab imperatore consecutus 
sit, [quibus casibus] dum uiuit iste 
libertus, ceteris ciuibus Romanis li- 


LIBERTI LATINI. 


315 


consult was passed, the external 
heir would have been entitled under 
the lex Junia, and the residue will 
devolve to them in the proportion 
of their shares in their father’s suc- 
cession. 

§ 71. It is a further question, 
whether this senatusconsult extends 
to children born of a daughter or 
granddaughter of a patron, so that 
in respect of the goods of a Latinus 
Junianus a grandson by a daughter 
will take precedence of an external 
heir. Again, whether a maternal 
Latinus Junianus is within the 
senatusconsult, so that in respect 
of a Latinus Junianus, manumitted 
by a mother, precedence is given to 
the patroness’ son over an external 
heir of the mother. Cassius held 
that both cases are within the scope 
of the senatusconsult; but his 
opinion is generally rejected on the 
ground that the senate could not 
contemplate the benefit of patron- 
esses’ sons; persons, that is, never 
in the manumitters family; as 
appears from its making individual 
disinheritance a bar; for herein the 
senate appears to contemplate those 
who must be disinherited by their 
parent in default of institution. 
Now a mother need not disinherit 
her child, nor a mother’s father a 
grandchild, in default of institution, 
either by the civil law or by that 
part of the praetorian edict which 
promises contra-tabular possession 
to children passed over by a testator 
in silence. 

§ 72. Sometimes a freedman who 
has enjoyed the full franchise dies 
as a Latinus Junianus; for in- 
stance, a Latinus Junianus who has 
obtained an imperial grant of Qui- 
ritary status without prejudice to 
the rights of his patron: for by a 
constitution of the emperor Trajan 
a Latinus Junianus who obtains an 
imperial grant of Quiritary status 








316 


bertis similis est et iustos liberos 
procreat, moritur autem Latini 
jure, nec ei liberi eius heredes esse 
possunt; et in hoc tantum habet 
testamenti factionem, ut patronum 
heredem instituat eique, si heres 
esse noluerit, alium substituere 
possit. 


$ 73. Et quia hac constitutione 
uidebatur effectum, ut ne umquam 
isti homines tamquam ciues Romani 
morerentur, quamuis eo iure postea 
usi essent, quo uel ex lege Aelia 
Sentia uel ex senatusconsulto ciues 
Romani essent, diuus Hadrianus 
iniquitate rei motus auctor fuit 
Benatusconsulti faciendi, ut qui 
ignorante uel recusante patrono ab 
imperatore ius Quiritium consecuti 
essent, si eo iure postea usi essent, 
quo ex lege Aelia Sentia uel ex 
senatusconsulto, si Latin] mansis- 
Bent, ciuitatem Romanam conseque- 
rentur, proinde ipsi haberentur ac 
si lege Aelia Sentia uel senatus- 
consulto ad ciuitatem Romanam 
perueuissent. 


DE RERUM UNIVERSITATIBUS. 


[ur. $$ 55-76. 


without the consent or knowledge 
of his patron resembles during his 
lifetime other fully enfranchised 
freedmen, and procreates lawful 
children, but dies with the status 
of & Latinus Junianus, leaving no 
children that can inherit; and bas 
only this amount of testamentary 
capacity that he may institute his 
patron heir, and name a substitute 
to him in case of his renouncing 
the inheritance. 

$73. But as the effect of this 
constitution seemed to be, that such 
@ person could never die in posses- 
sion of the plenary franchise, even 
though he subsequently acquired 
the title to which the lex Aelia 
Sentia or the senatusconsult (1$ 31) 
annexes the right of Roman citizen- 
ship, the emperor Hadrian, to miti- 
gate the harshness of the law, passed 
@ senatusconsult, that a freedman, 
who obtained from the emperor a 
grant of Quiritary status without 
the knowledge or consent of his 
patron, on subsequently acquiring 
the title to which the lex Aelia 
Sentia or the senatusconsult, if he 
had remained a Latinus Junianus, 
would have annexed the rights of 
Roman citizenship, should be deem- 
ed to have originally acquired Qui- 
ritary status by the title of the lex 
Aelia Sentia or the senatuscousult. 


DE BONIS LIBERTORUM DEDITICIORUM. 


$74. Eorum autem quos lex 
Aelia Sentia dediticiorum numero 
facit, bona modo quasi ctutwm 
Romanorum libertorum, modo quasi 
Latinorum ad patronos pertinent. 


$75. Nam eorum bona qui, st in 
aliquo uitio non essent, manumissi 
ciues Romani futurt essent, quasi 
ciuium Romanorum patronis eadem 
lege tribuuntur. non tamen hi 
habent etiam testamenti factionem ; 


$ 74. Those who under the lex 
Aelia Sentia are quasi surrendered 
leave their goods to their patrons 
sometimes like freedmen fully en- 
franchised, sometimes like Latini 
Juniani. 

$75. Those of them who, but 
for some offence, would have ob- 
tained on manumission the plenary 
franchise leave their goods to their 
patrons like fully enfranchised 
freedmen by the provision of the 


111. $$ 55-76. ] 


nam id plerisque placuit, nec in- 
merito : nam incredibile videbatur 
pessimae condicionis hominibus uo- 
luisse legis latorem testamenti faci- 
endi ius concedere. 


$ 76. Eorum uero bona qui, si 
non in aliquo uitio essent, manu- 
missi futuri Latini essent, proinde 
tribuuntur patronis, ac si Latini 
decessissent. nec me praeterit non 
satis in ea re legis latorem uolunta- 
tem suam uerbis expressisse. 


LIBERTI DEDITICII. 


317 


above mentioned statute; but, ac- 
cording to the prevalent and better 
opinion, they cannot make a will; 
for it seems incredible that the 
most abject order of freedmen should 
have been intended by the legislator 
to enjoy the power of testamentary 
disposition. 

$76. The goods of those who, 
but for some offence, would have 
become on  manumission Latini 
Juniani devolve to their patrons 
asthe goods of Latini Juniani, 
though, as I am aware, the legis- 
lator has not expressed his intention 


in this matter in terms as unequi- 
vocal as might be desired. 


$ 56. For liberti Latini Polenaar proposes to read : liberi [in the 
sense of ingenui] Latini. 

$ 59. Jt was an arbitrary rule of Roman jurisprudence that rights 
of patronage were not divisible in unequal portions (placuit nullam 
esse libertorum divisionem, Dig. 37, 14, 24), that is, that several 
joint proprietors of a slave in unequal portions acquired by his 
manumission equal rights as joint patrons against his succession. 

$ 60. The nghts of patrons were modelled on those of agnates, 
and we know that only the nearest agnate was entitled to succeed. 
Therefore on the decease of one of several joint patrons his rights 
accrued to the remainder by survivorship. But the peculium of a 
slave belongs to his coproprietors in the ratio of their property, 
and on the decease of one, his rights do not accrue to the copro- 
prietors, but are transmitted to the representatives of the deceased. 

§ 63. Cf. Inst. Just. 8, 8, 4. The Sc. Largianum was passed 
under the emperor Claudius, 4. n. 42. 

$69. The Sc. Largianum giving a successoral right to the 
children of the patron, put them all on a footing of equality like 
manumitting joint proprietors, $ 59, but it only took effect when 
a stranger was appointed heir or coheir; if then a patron left his 
whole inheritance to his children, but in unequal portions, their 
rights to the succession of a Latinus Junianus would be governed 
by the older law, and would be proportionate to their shares in 
their father's succession. 

$75. Cf. 1, 25, Ulpian gives as a reason why Dediticius could 
not make a will his want of citizenship both at Rome and in every 








318 DE RERUM UNIVERSITATIBUS.  [1m.$$ 55-76, 


other state : Is qui dediticiorum numero est testamentum facere non 
potest, quoniam nec quasi civis Romanus testari potest, cum sit 
peregrinus, nec quasi peregrinus, quoniam nullius certae civitatis civis 
est, ut secundum leges civitatis suae testetur, 20, 14. This requires 
some explanation; and the explanation may serve to illustrate all 
those passages of Gaius, e.g. 1 § 92, where he alludes to the laws 
of civitates peregrinae. 

At the close of the republic, and during the first centuries of the 
empire, all Italy, with the exception of Rome, was composed of a 
number of townships; each with its own territorial limits, and each 
possessed of its own constitution, magistrates, jurisdiction, and, toa 
_ certain extent, legislation. In the lex Julia municipalis, preserved 
on the tabula Heracleensis, these townships are called Coloniae when 
they had been founded as colonies from Rome, Municipia when they 
traced their existence to some other origin. The provinces, though 
originally very variously constituted, were gradually assimilated in 
condition to Italy and its towns: so that finally the whole empire 
was composed of municipalities, and almost all of its free inhabitants 
were either citizens of Rome or of some local and inferior community. 

The generic denomination of these communities, whether Italian 
or Provincial, was Civitas or Respublica. The term Municipium 
was sometimes used in this generic sense; but was more commonly 
used in a specific sense as opposed to Colonia. Municipes, however, 
is often used in the generie sense where we might have expected 
Municipium; as equivalent to Respublica or Civitas. It is also 
often used to signify generically, not a state or juristic person 
(municipium), but its individual members; i.e. as equivalent to 
cives, in speaking of any town but Rome: as the word Civis, from 
its habitual opposition to Latinus and Peregrinus, had acquired a 
tendency to suggest civis Romanus. The area belonging to each 
town was called Regio or Territorium, and included under one 
jurisdiction all the Vici within its geographical limits. 

Citizenship (civitas, patria, origo) in any munieipality was 
producible by four causes: Municipem aut nativitas facit, aut 
manumissio, aut adoptio, D. 50, 1, 30, pr. Cives quidem origo, 
manumissio, allectio, vel adoptio; incolas vero domicilium facit, 
C. 10, 89, 7. 

(1) Birth (origo, nativitas) was the commonest title; and hence 
the word origo is used as equivalent to civitas. Legitimate children 
had the civitas of their father; illegitimate of their mother. Some 


mnt. $$ 55-76.] MUNICIPIA. 319 


states had the privilege that legitimate children should have the 
civitas of the mother in addition to that of the father. 

(2) Adoptio gave to the adopted child, in addition to his original 
civitas, that of his adoptive father. 

(3) Manumissio, when perfect, gave to the freedman the civitas 
of his patronus. 

(4) Allectio, election by the governing body of a community, 
admitted strangers to civitas. 

It follows that a man might be a citizen of several states; of one 
by origo, another by adoptio, another by allectio. This may seem 
to be contradieted by Cicero: Duarum civitatum civis esse nostro 
jure civili nemo potest, Pro Balbo, 2: but Cicero is here speaking 
of independent sovereign states; not of the dependent states com- 
posing the organism of the Roman empire. 

When the lex Julia municipalis had given Roman citizenship to 
all Italy, and an ordinance of Caracalla, subsequent to the time 
of Gaius, had extended it to all the Provinces, every member of any 
munieipality had at least a double citizenship : he was citizen of 
Rome as well as of the smaller municipality : Omnibus municipibus 
duas esse censeo patrias, unam naturae, alteram civitatis . . . habuit 
alteram loci patriam, alteram juris, Cicero, Delegibus,2, 2. Roma 
communis nostra patria est, Modestinus, D. 50, 1, 33. 

The principal effects of citizenship in a municipality were three- 
fold : 

(1) Obligation to bear certain burdensome municipal offices 
(munera) ; 

(2) Subjection or obligation of submission to the municipal 
magistrates and tribunals, including liability as defendant to be 
sued before its courts (forum originis) ; 

(3) Subjection to municipal laws, including the determination of 
a man's personal capacity—infancy, minority, majority, capacity of 
disposition, &c.—by the laws of the community in which he had 
civitas (lex originis). 

In all these effects a man’s Roman citizenship was of slight 
importance compared with his municipal citizenship. The burdens 
(munera) of the metropolitan city were provided for by arrange- 
ments peculiar to Rome, The liability of a defendant to be sued 
before a Roman forum was limited to the time when he happened 
to be resident in Rome, and then was subject to many exceptions, 
included under the general name of jus revocandi domum ; and in 


320 DE RERUM UNIVERSITATIBUS.  [1m.$$ 55-76. 


any ease of collision between the laws relating to personal capacity, 
the laws of Rome always yielded to those of the local patria or 
father town (lex originis). 

In all the above consequences Domicil (domicilium, incolatus, 
domus) had an operation similar to civitas. Domicil is the place 
which à man has voluntarily chosen for his permanent residence, as 
the central station of his fortunes, and the head-quarters of his 
dealings and dispositions ; Incolas vero . . . domicilium facit. Et 
in eo loco singulos habere domicilium non ambigitur, ubi quis 
larem rerumque ac fortunarum suarum summam constituit, unde 
rursus non sit discessurus, si nihil avocet, unde quum profectus est, 
peregrinari videtur, quo si redit, peregrinari jam destitit, C. 10, 89, 
7. * Home is identical with Domicil ; and Domicil is agreed to be 
the place where a man has established his household gods and the 
head-quarters of his transactions and obligations: the place which 
he will not leave except for a special purpose; absence from which 
makes him seem to be a stranger, and return to which makes him 
cease to be a stranger.’ Sed de ea re constitutum esse (respondit), 
eam domum unicuique nostrum debere existimari, ubi quisque sedes 
et tabulas haberet suarumque rerum. constitutionem fecisset, D. 50, 
16, 203. ‘It is undisputed that a man's home is the place where 
he is settled and has his counting-house (account-books) and 
the basis of his operations (or, centre of gravitation of his for- 
tunes).’ 

A man was liable to munera of the city which he had chosen for 
a domicil as well of that where he had the rights and duties of 
citizenship. Domicil, as well as Origo, constituted a man’s General 
forum ; that is, in any action in which a man was defendant, the 
plaintiff had the election whether he would sue him at his forum 
originis or forum domicilii. A man can only be governed by one 
Lex: and if he was citizen in any municipality, he was governed 
by lex originis; if he was nowhere citizen, he was governed by lex 
domicilii. [Domicilium originis, a monstrous combination of modern 
writers, ought to express the coincidence of Domicil and Fatherland, 
but is intended to express the paternal domicil (domicil of a man’s 
father).] 

The subversion of the Roman empire in the west abolished the 
importance of the Municipalities; and, with the exception of Swit- 
zerland where it still prevails, the doctrine of Origo disappeared 
from those countries which are still influenced by Roman juris- 


riz. $$ 55-76. | ORIGO, DOMICILIUM. 321 


prudence. The doctrine of Domicilium still survives, at least as to 
Forum and Lex, in Private international law: what related to 
Munera shared the fate of the other political institutions of the 
empire. Savigny, $$ 850-359. 

We may observe that the reason assigned by Ulpian for the 
incapacity of Dediticius to make a will, his want of patria, appears 
inadequate : for, if he had no patria, at least he had domicilium, and 
we have seen that, in the absence of patria, a man’s personal 
capacity was determined by his domicilium. We may infer that 
the equivalence of domicilium to patria—to say nothing of the 
modern maxim: Locus regit actum, 4 § 53, comm., the ability of 
even temporary residence, as opposed to domicil, to give validity 
to the mere Form of a disposition—was not completely established, 
not at all events in favour of Dediticius, in the times of Gaius or 
even in those of Ulpian. 

§ 76. The third class of freedmanship (dedititia libertas) had 
long been obsolete when it was formally abolished by Justinian, 
A.D. 580, Cod. 7, 5. 

The second class (latinitas) under which the freedman relapsed 
into servitude at the moment of death, was also offensive to Roman 
feelings in the time of Justinian, and was by him formally abolished, 
the principal modes of ereating latinitas being transformed into 
modes of acquiring quiritary status or civitas Romana, and the 
remainder being declared inoperative, Cod. 7, 6. 

The rules of succession to intestate freedmen of the first class, 
the only elass henceforth recognized, were immensely simplified by 
Justinian. While he abolished the last remnants of the lex Papia, 
and amongst them the riphte which that law gave to the patron 
against the heritage of Centenarius, or the freedman who died worth 
100,000 sesterces, or what Justinian treated as equivalent, 100 
aurei; he confined the rights of the patron to inheritances of that 
amount ; that is to say, he exempted from the claims of the patron, 
contratabular or ab intestato, all estates left by a freedman below 
the value of 100 aurei. Against such estates, moreover, he reduced 
the claims, contratabular or ab intestato, of the patron from 3 to 4. 

Patrons were protected against dolose alienations by the freed- 
man in his lifetime in two ways. Alienations which reduced the 
fortune of the freedman below the specified limit (made the freed- 
man minorem centenario) were deemed to be in fraudem legis, and 
were ipso jure null and void: alienations which, without making 

Y 





322 DE RERUM UNIVERSITATIBUS. _[n1. §§ 55-76. 


the freedman minorem centenario, diminished the amount of the $ 
to which the patron was entitled, were valid at law, but were 
rescinded by the patron's personal action against the alienee. If 
the freedman died testate, the patron employed against the alienee 
the formula Fabiana ; if he died intestate, the formula Calvisiana. 
These actions were analogous to the actio Pauliana, the creditors’ 
remedy against the alienee in the case of alienations in fraudem 
creditorum. Dolose alienations by manumission whether in frsudem 
ereditorum or in fraudem patroni were made null and void by the 
lex Aelia Sentia, Gaius 1 $ 87. 

The patron’s remedy by actio Fabiana and actio Calvisiana may 
be compared with the cognate’s remedy by Querela inofficiosae 
donationis; for the nghts of a patron against the inheritance of 
the freedman were analogous to the nghts of a cognate to a certain 
portion (debita, legitima portio) of the inheritance of any testator. 
While the former were enforced by contratabulation (i.e. by inter- 
dictum quorum bonorum and petitio hereditatis possessoria), the 
latter were enforced by Querela inofficiosi testamenti, with a 
fictitious allegation of the testator’s insanity. The amount re- 
coverable by the two classes of claimants differed: while the patron 
was entitled to à, or, in later times, $ of the nheritance, the 
cognate was entitled to 1 of what would have been his share 
in the event of intestacy. In both cases the wil of the 
testator, whether libertus or ingenuus, was allowed to stand, so far 
as was consistent with the claims of the Querulant or Contra- 
tabulant: but while Contratabulation necessarily produced a viola- 
tion of the rule: nemo pro parte testatus, pro parte intestatus, 
decedere potest, the Querela only produced it occasionally, as it 
often caused a complete rescission of the will, or total intestacy. 
Praeteriti liberi, i.e. neither instituti heredes nor exheredati, could 
also contratabulate like the patron: but the patron’s ground of 
contratabulation, like the cognate’s ground of querela, was a 
material wrong; whereas preterition of liberi was & mere in- 
formality. | 

The righte of the patron against the freedman's estate were not 
only interesting to the freeborn Roman in his possible character of 
a patron, but also as possibly a subject of manumission: for an 
emancipating parent (parens manumissor) had the same claims 
against the estate left by the emancipated child as the manumitter 
of a slave had against the estate left by the freedman, i,e. a claim 


im. $$ 77-81.] BONORUM VENDITIO. 323 


originally to a moiety and subsequently to a third of the succession, 
either contratabular or ab intestato. He however could not bring 
actio Fabiana or Calvisiana to defeat dolose alienations made in the 
lifetime of the emancipated child. 

In later times the multiplication of Peculia, castrense, quasi- 
castrense, &c., very much diminished the value of emancipation to 
filiusfamilias, and proportionally deprived of its strength the claim 
of the emancipating parent to have his act recognised among the 
titles of testate and intestate suecession, and it was a foregone con- 
clusion that Novella 115, which recast the rules relating to inoffici- 
ositas, and Novella 118, which reformed intestate law, should 
abolish both the contratabular and the ab intestato rights of parens 
manumissor. Adolf Schmidt, Das Pflichttheilsrecht des Patronus 
und des Parens manumissor, 


SUCCESSIO PER BONORUM VENDITIONEM, 


$ 77. Videamus autem et de ea 
successione quae nobis ex emptione 
bonorum conpetit. 

$ 78. Bona autem ueneunt aut 
uiuorum aut mortuorum : uiuorum 
ueluti eorum qui fraudationis causa 
latitant nec absentes defenduntur ; 
item eorum qui ex lege Iulia bonis 
cedunt; item iudicatorum post 
tempus quod eis partim lege XII 
tabularum partim edicto praetoris 
ad expediendam pecuniam tribuitur. 
mortuorum bona eeneunt ueluti 
eorum quibus certum est neque 
heredes neque bonorum possessores 
neque ullum alium iustum succes- 
sorem existere. 


$ 79. Siquidem uiui bona ue- 
neant, iubet ea praetor per dies 
continuos XXX possideri et pro- 
scribi; si uero mortui, per dies xv. 
postea iubet conuenire creditores et 
ex eo numero magistrum creari, id 
est eum per quem bona ueneant. 


$ 77. We next proceed to suc- 
cession of a vendee to the estate of 
& bankrupt. 
. § 78. The estate of a bankrupt 
may be sold either in his lifetime or 
after his death. It is sold in his 
lifetime when, fer instance, he, being 
present in the forum, defrauds his 
creditors by absconding, or when 
he is absent from the forum and 
undefended, or when he avails him- 
gelf of the lex Julia and surrenders 
his estate, or when, after judgment 
recovered against him, he has suf- 
fered the term to expire that is 
prescribed, partly by the Twelve 
Tables, partly by the edict of the 
praetor, for the satisfaction of a 
judgment debt. A bankrupt's estate 
is sold after his death when it is 
certain that he has left neither an 
heir, nor a praetorian representa- 
tive, nor any other lawful successor. 

§ 79. If the bankrupt whore 
estate is to be sold is alive, an or- 
der issues from the praetor, and bis 
estate is possessed and advertised 
for sale for thirty continuous days ; 
if the bankrupt is dead, it is pos- 
sessed and advertised for fifteen 


Y2 





324 


itaque si uiui bona ueneant, in die- 
bus (X bonorum) uenditionem fieri 
iubet, si mortui, in dimidio. diebus 
itaque uiui bona XxXr, mortui wero 
Xx emptori addici iubet. quare 
autem tardius uiuentium bonorum 
uenditionem  conpleri iubet, illa 
ratio est, quia de uiuis curandum 
erat, ne facile bonorum uenditiores 
paterentur. 


$ 80. Neque autem bonorum poe- 
sessorum neque bonorum emptorwn 
res pleno iure fiunt, sed in bonis 
efficiuntur; ex ture Quiritium 
sutem ita demum adquiruntur, si 
uswceperent. interdum quidem 
bonorum emptoribus ne wlsus qui- 
dem capio contingit, ueluti si | 
bonorum emptor | | 














§ 81. Item quae debita sunt 
| aut ipse debuit, neque 
bonorum possessor neque | bonorum 
emptor ipso iure debet aw£ ipsis 
debentur, |— de omnibus rebus 
in sequenti com- 
mentario prolponemus. 











DE RERUM UNIVERSITATIBUS. [u:.6$77-81. 


days. After this delay a second 
order issues from the praetor, di- 
recting the creditors to hold a meet- 
ing and elect out of their number a 
liquidator, by whom the estate may 
be sold. And after the expiration 
of the ten days next following, 
if the bankrupt is alive, or of five 
if he is dead, & third order issues 
from the praetor, under which the 
sale is held. Thus after the ex- 
piration of forty days if the bank- 
rupt is alive, after the expiration 
of twenty if he is dead, a decree 
of the praetor transfers the universal 
estate of the bankrupt to the pur- 
chaser. The longer delay pre- 
scribed for the sale of the estate of 
a living bankrupt is founded on the 
greater consideration due to the 
living than to the dead, and is de- 
signed to protect a living debtor 
from unnecessary bankruptcy. 

§ 80. Neither a [juxta-tabular, 
contra-tabular, or ab-intestato |prae- 
torian successor, nor a purchaser in 
bankruptcy acquires plenary do- 
minion, but only bonitarian owner- 
ship. Quiritarian ownership is only 
acquired by  usucapion, though 
sometimes & bonorum emptor can- 
not even acquire by usucapion (for 
instance, when a peregrinus is 
bonorum emptor). 

§ 81. Debts owed to or by a 
heritage-leaver or a bankrupt are 
not at civil law owed to or by the 
praetorian successor or vendee in 
bankruptcy, but are recoverable by 
fictitious forms of action, which will 
be explained hereafter [4 § 34]. 


§ 77. Cf. 4, 85. Missio in possessionem and the subsequent bono- 
rum venditio correspond in their essential character to the adjudi- 
cation of bankruptcy and the concomitant transfer of the debtor's 
estate to the creditor's trustee of English jurisprudence. 

Roman law never established any distinction between traders 
and non-traders, in other words, between bankruptcy and insolvency, 
& distinction once important in English law, and which even at the 


ri. $$77-81.] BONORUM VENDITIO. 825 


present day is not entirely effaced. Formerly, in consideration of 
the hazardous nature of trade, and the necessity of large credits to 
sustain an extensive commerce, the trader was treated with greater 
indulgence than the non-trader; and bankruptcy operated as a 
discharge of obligations, whereas insolvency only discharged the 
person of the debtor, and left his obligation to pay out of his after 
acquired estate in full force. This distinction is now abolished, 
and traders and non-traders are placed on the same footing. 
Roman law in respect of the continuing obligation of the bankrupt 
resembled the English law of insolvency. 

In order to form a clear conception of this branch of the law, it 
is necessary to distinguish between an ordinary judgment execution 
in a personal action, that is to say, the enforcement by the power 
of the state of a judgment debt against a debtor who contumaciously 
omits to satisfy the judgment by voluntary payment, from an 
adjudication of bankruptey, which is the process when a debtor is 
not only unwilling but also unable to fulfil his obligations. The 
English process in an ordinary execution is either & writ of fieri 
facias, commanding the sheriff to satisfy the debt by seizure and 
sale of the personal goods of the debtor; or a writ of levari facias, 
now disused, directing him to levy the debt out of the personal 
goods of the debtor, and the rents and profits of his land; or a writ 
of elegit, commanding him to deliver the debtor's goods to the 
ereditor at an appraisement, and to put the creditor in possession of 
the debtor's land, to hold until out of the rents and profite thereof 
the debt is levied; or formerly, before imprisonment for debt was 
abolished, a writ of capias ad satisfaciendum, commanding him to 
imprison the body of the debtor until satisfaction was made for the 
debt. After & man's body was taken in execution, no other process 
could be sued out against his lands or his goods, and after his lands 
were seized by elegit, his body could not be taken, but if part 
only of the debt was levied on a fieri facias, the creditor might 
have a capias ad satisfaciendum for the residue. So that body and 
goods might be taken in execution, or land and goods, but not both 
body and land. None of these remedies, we may observe, includes 
the sale of the debtor’s land. In bankruptcy, on the contrary, the 
whole real as well as personal estate of the debtor is transferred to 
the creditors’ trustee, to be sold or otherwise disposed of, at the 
discretion of the creditors. 

We find a corresponding difference between execution and bank- 


326 DE RERUM UNIVERSITATIBUS.  [rm.$$77-81. 


ruptey in Roman law, at all events in its later period. The pro- 
ceeding in an ordinary execution, as opposed to proceedings in 
insolvency, was called pignoris eapio, Dig. 4, 2, 1. A portion of 
the debtor's estate was seized, not by the plaintiff, as in the old 
legis actio called pignoris capio, but by public officers (the officiales, 
viatores, apparitores, executores of the magistrate), and, after being 
detained for two months to enforce payment by way of pledge, was 
sold in satisfaction of the debt. Movables were to be seized and 
sold in the first instance, but, if these were insufficient, lands might 
be seized and sold, Dig. 42, 1, 15. If a purchaser could not be 
found the property might be delivered to the creditor at an ap- 
praisement, ibid. In pignoris capio there was only a conveyance 
of & portion of the debtor's estate, there was no transfer of his j juris 
universitas as in insolvency. 

We have said that it was necessary to distinguish proceedings 
in bankruptcy from execution in a personal action. There is not 
the same danger of confusion between bankruptcy and execution in 
a real action. The judgment m a real action declares the plaintiff 
proprietor, if it passes in his favour, and possession of the thing in 
dispute is delivered to him by the sovereign power. The judgment 
in a personal action only declares the plaintiff creditor, and some 
payment or conveyance has still to be performed by the debtor. 

As the levy of an execution by seizure and sale of a trader's 
goods for a debt of fifty pounds is an act of bankruptcy, it is 
evident that in English law execution will often involve bank- 
ruptey ; that is to say, when one creditor has obtained payment of 
a debt by an ordinary execution, other creditors will proceed by 
petition for an adjudication of bankruptcy. — 

In order to understand the proceedings in bonorum emptio, or 
execution against the property of an insolvent debtor, the principal 
sanction of the Roman civil code in its later periods, we must study 
the earlier mode of execution by manus injectio, or process against 
the body of the debtor, which was one of the old legis actiones 
regulated by the Twelve Tables, 4 §§ 21-25, and which was the 
model on which proceedmgs in missio in possessionem, or process 
against an insolvent's estate, were regulated by subsequent prae- 
torian legislation. These proceedings are known to us by the 
statements of Aulus Gellius, who has given us the very terms of 
the Twelve Tables, 20,1. ‘After an admission of debt or a judg- 
ment the debtor was allowed thirty days for payment. This delay 


nr. 8 77-81.] BONORUM VENDITIO. 327 


is called a lawful interval by the decemvirs, and interposed a stay 
of legal proceedings, After its expiration, in default of payment, 
the debtor was summoned before the praetor and delivered to the 
custody of the creditor, to be confined in stocks or chains. The 
following are the expressions of the law: Admitted debts and 
debts proved by statute-process must be satisfied within a lawful 
term of thirty days. When these are elapsed the debtor may be 
apprehended and taken before the magistrate. In default of satis- 
fying the judgment, or of finding bail in the court who will bind 
himself to defend an action for the debt, he shall be delivered into 
the hands of the creditor, to be forcibly removed and confined in 
stocks or fetters. . . . During a subsequent interval the debtor 
might effect a compromise, but in default of a compromise was 
detained in chains for sixty days. During this period, on three 
continuous ninth or market-days he was taken before the praetor 
in the comitium, where the amount of the judgment debt was pro- 
elaimed. On the third market-day he was put to death, or sold 
into slavery beyond the Tiber. ... On the third market-day, say 
the Twelve Tables, the creditors may cut their portions of his body, 
and no creditor who cuts too little or too much shall be therefore 
called to account.’ 

In close imitation of this execution against the body, a process 
of execution against the property of an insolvent was introduced 
by a praetor named Publius Rutilius, upwards of a century before 
the Christian era, 4 § 35. It may be assumed from the parallelism 
of these proceedings that the interval of thirty days which was 
required to elapse between the first seizure and the decree author- 
ising the election of a magister was derived from the thirty days 
interval allowed the judgment debtor before manus injectio. 

Some of the details of the proceedings in a missio in possessionem 
which are omitted by Gaius may be supphed from Theophilus. 
Before the final transfer of the debtor’s estate (addictio) three 
decrees of the praetor were necessary :— Ó 

(1) A decree authorizing the seizure of the debtor's estate and its 
advertisement for sale (proseriptio). "Theophilus gives the form of 
this advertisement: 6 diva, xypeworis ?)uérepos jmápycv, els alr(av 
épézeaec bumpáaews. ters, xpedlrwpes Óvres, rijv rovrov b.amumpáakop.ev 
aeptovoiay. ayntys 6 BovAduevos mpoaíro, 3,12. * So-and-so, our 
debtor, is bankrupt; we, his creditors, are about to sell his estate ; 
whoever wishes to purchase is invited to attend.’ This advertise- 


328 DE RERUM UNIVERSITATIBUS.  [m.$$ 77-81. 


ment was affixed to the Columna Maenia, which was in the forum 
on the Puteal near the Career. Pliny, N. H. 7, 60. In the old 
system of manus injectio, the judgment debtor ( judicatus), after the 
expiration of the thirty dies justi, was no longer allowed to defend 
an action in person, but might, as we see by the above-quoted 
fragment of the Twelve Tables, be defended by a vindex. In the 
formulary system, the equivalent of the vindex was satisdatio judi- 
eatum solvi, security with two sureties for the payment of the 
judgment to be recovered, and the Judgment recoverable in an actio 
judieati was for twice the amount of the disputed judgment debt, 
Gaius, 4$ 9, 4$ 102. Supposing, however, the missio in posses- 
sionem was not founded on a previous judgment, but on the debtor’s 
absconding or keeping house, then the period at which he was dis- 
abled from defending an action, unless he gave security (judicatum 
solvi) was the expiration of thirty days after his estate had been 
seized and advertised for sale, Cicero, Pro Flacco. Before the 
thirty days have expired, the debtor is admitted to defensio without 
satisdatio judicatum solvi. 

(2) After the possession and proscription of the estate the bank- 
rupt is infamis, and cannot defend without satisdatio judicatum 
solvi; and a second decree of the praetor empowered the creditors 
to hold a meeting and elect a magister to manage the sale, corre- 
sponding to the creditor’s assignee or, at the present day, the 
creditor's trustee of English law. 

(3) After a certain period (ten or five days), a third decree 
authorized the publication of the conditions of sale, which were 
appended to the original advertisement. 

A period of forty or twenty days having thus been completed 
from the first missio in possessionem, the sale took place by 
publie auction, the universitas juris of the debtor being trans- 
ferred to the bidder who offered the creditors the highest dividend, 
that is, the greatest amount in the pound on their respective 
claims. 

The principal acts or defaults which entitled a Roman cre- 
ditor to bonorum venditio, may be compared with those which 
entitle an English creditor to petition for an adjudication in 
bankruptey, i.e. to the so-called acts of bankruptcy of English 
jurisprudence. 

(1) As manus injectio might be founded on a previous judgment 
or an admission of debt (res judicata or aes confessum), and missio 


nt. $$ 77-81.] BONORUM VENDITIO. 329 


in possessionem might be granted instead of pignoris capio against 
judieatus who makes default, so in English law non-payment of an 
admitted or a judgment debt after service of a debtor's summons is 
an act of bankruptcy, and instead of suing out a writ of execution 
the creditor may petition for adjudication of bankruptcy. 

(2) When there is no previous judgment or admission of debt, a 
debtor who absconds or secretes himself, with intent to defraud his 
creditors, commits an act of bankruptcy in both systems of law. 
In English law, for instance, if a debtor makes an appointment 
with a creditor to meet at the debtor’s place of business, and avoids 
the meeting with the intention of delaying the creditor; or if he 
withdraws from his usual counting-house to a room upstairs, to 
avoid the rightful and personal solicitation of his creditors for pay- 
ment, he commits an act of bankruptcy. Soin Roman law: Praetor 
ait: In bona ejus qui judicio sistendi causa fidejussorem dedit, si 
neque potestatem sui faciet neque defendetur, iri jubebo, Dig. 42, 
4,2. ‘The praetor says in the edict: If a man enter into a bond 
with suretyship to appear at a trial, and neither appears in person 
nor by procurator, I will permit the plaintiff to seize his goods.’ 
Again: Praetor ait: Qui fraudationis caus& latitabit, si boni viri 
arbitratu non defendetur, ejus bona possideri vendique jubebo, Dig. 
42, 7,1. ‘The praetor says in the edict: If a man secrete himself 
with intent to defraud his creditors, and is not defended by a pro- 
curator who gives security approved by an arbitrator, I will order 
his property to be seized and sold.’ 

There is no adjudication of bankruptey against a deceased debtor 
in English law, but there may be a transfer of his universitas juris 
as in Roman law; for creditors, in default of other administrators, 
may take out letters of administration against the estate of a 
deceased debtor. 

Cessio bonorum was introduced by a lex Julia, § 78, enacted 
either by Julius or Augustus Caesar, and if by the latter, in 
imitation of a measure of the former which he himself has recorded. 
In the year 48 5.c. when Caesar was consul, credit having collapsed 
in consequence of the civil war, debtors being generally insolvent, 
and money having disappeared, Caesar allowed them to discharge 
their obligations by the transfer of their estates, movable and 
immovable, to their creditors, at the value, appraised by arbitrators, 
which they would have borne before the commencement of the war, 


De Bello Civili, 8, 1. Cessio bonorum conferred three benefits on 


330 DE RERUM UNIVERSITATIBUS.  [11. $$ 77-81. 


the debtor: exemption from arrest and imprisonment, exemption 
from infamy, exemption of his after-acquired property from liability 
beyond a certain amount. Of these in order. 

(a) After the abolition of the legis actiones, and the introduction 
of execution against the estate, execution against the body of the 
debtor still remained as one of the remedies of the civil code. The 
insolvent debtor was incarcerated and compelled to labour for the 
benefit of the creditor, although he could no longer be sold as a 
slave. Savigny holds that Personal execution—incarceration, manus 
injectio—was always confined to a judgment on a money loan— 
mutuum, numerata pecunia: or on Nexum—a fictitious money 
loan, a contract transformed or novated by a fiction of a money 
loan, particularly a contract for payment of interest, which in itself 
was not a contract of mutuum but of stipulatio: or on certain other 
obligations assimilated by statute to mutuum, e.g. actio depensi, 
4 6 22. Execution against the estate was not, then, & modern 
invention but coeval with execution against the body; and was 
employed against all judgment debtors except those condemned for 
a money loan, real or fictitious, or for depensum or certain other 
grounds defined by statute. The lex Poetelia left untouched Per- 
sonal execution for genuine money loans; and this execution was 
still practised in the time of Justinian, though rendered uncommon 
by the frequency of Cessio bonorum. The lex Poetelia only abolished 
Personal execution for Nexum (a fictitious money loan) though it 
also mitigated the treatment of the debtor condemned ( judicatus, 
addictus) for a genuine loan. From this personal execution a debtor 
was exempted by cessio bonorum. In eo tantummodo hoc beneficium 
eis prodest ne judieati detrahantur in carcerem, Cod. 7,71, 1. *'The 
principal benefit of bonorum cessio is, that it exempts the insolvent 
from incarceration) Bethmann-Hollweg holds, § 112, that personal 
execution applied to all judicati, and that exemption from incar- 
ceration was only obtained by bonorum cessio. 

(b) The assignment (addictio) of the insolvent borrower re- 
duced him to a state of partial servitude. But the Roman lawyers 
distinguished between partial slavery (servire) and complete 
slavery (servum esse), Quintilian, 7, 3. For instance, the addictus 
retained his praenomen, nomen, cognomen, tribe, could by pay- 
ment of his debt recover his liberty at any time without the 
consent of the creditor, and on recovery of his liberty was not 
. libertinus butingenuus, As, then, addictio did not reduce a free- 


mi. $$ 77-81.] BONORUM VENDITIO. 331 


man to slavery, it did not operate a degradation of status (capitis 
minutio). 

Insolvency, however, deeply affected another branch of status, 
namely, civitas, although even here, as it only partially destroyed 
the privileges of civitas, it was not considered to operate a capitis 
minutio. Civitas, as we have seen, consisted of two portions, 
certain political or publie rights, jus suffragii and jus honorum, and 
certain civil or private rights, collectively denominated commercium 
and connubium. The political half of civitas was destroyed by 
insolvency, which deprived a man of his electoral powers and his 
capacity for office, and reduced him to the condition of aerarius ; 
and even the civil half was seriously impaired, and principally in 
respect of commercium, Of the aggregate of capacities called 
commercium the privilege forfeited by insolvency was the capacity 
of appointing or being appointed procurator, Inst. 4, 48, ld. By 
being disabled from appointing a procurator a man might be 
seriously hampered in his commercial proceedings, as he would 
be unable to cede a right of action ; by being disqualified for acting 
as procurator he would be unable to acquire by cession a right of 
action, and would be unable to sue for a penalty as an informer in 
a popularis actio, 4 § 82, for the prosecutor in such an action was 
considered to be the procurator of the people. The various privileges 
enjoyed by a citizen of untarnished credit, and liable to be forfeited 
by insolvency, were called his existimatio, and the disabilities of 
insolvency were summed up in the word *infamia or ‘ignominia.’ 
From this loss of existimatio the insolvent was exempted by bono- 
rum cessio, Debitores qui bonis cesserint lieet ex e& causá bona 
eorum venierint, infames non fiunt, Cod. 2,12,11. ‘The surrender 
of a debtor’s estate, though followed by a sale, does not involve 
infamy.’ 

(c) Proceedings in bankruptcy or insolvency, particularly in 
modern days, may be looked upon in two lights: either as a mode 
of execution, that is, as assisting the creditor to recover as much 
as may be of his rightful claims, or as a mode of liberation, 
that is, as a relief of an unfortunate debtor, releasing him of his 
debts without payment, and enabling him to ‘begin the world 
again’ without the overwhelming pressure of his past obligations. 
By the present English law, a bankrupt is discharged of his obliga- 
tions by payment of a dividend of ten shillings in the pound, or, 
failing this, by a resolution of his creditors that his bankruptey has 


332 DE RERUM UNIVERSITATIBUS.  [n1.6$ 77-81. 


arisen from circumstances for which he cannot justly be held 
responsible, and an expression of their desire that he should receive 
an order of discharge. Roman law only admitted this in one case, 
the case of a slave instituted heres necessarius, 2 § 155, in order to 
save the credit of an insolvent testator. After once undergoing 
bankruptcy, such a person was not liable to further molestation. 
But the after-acquired property of other insolvente remained hable 
to successive sales until plenary satisfaction of their debte. Accord- 
ingly, bankruptcy is not enumerated, 3 § 168, as one of the modes 
of extinguishing obligation. 

To encourage the bankrupt, however, to make a bonorum cessio, 
in order that as much as possible might be saved from the wreck of 
his fortunes for the benefit of his creditors, bonorum cessio not only 
discharged him, as we have seen, from personal execution, but dis- 
charged from hability such portion of his after-acquired property 
as was necessary for his subsistence. Qui bonis cesserint nisi 
solidum creditor receperit non sunt liberati, Cod. 7, 71, 1. Is qui 
bonis cesserit, si quid postea acquisierit, in quantum facere potest 
convenitur, Dig. 42, 8, 4. * Bonorum cessio does not discharge the 
insolvent/s estate until he makes full satisfaction, but exempts him 
from subsequent pursuit for more than he can afford to pay.’ See 
4, 48 comm. 

Both in Roman and in English law there isa transfer of the insol- 
vent’s juris universitas, but with this difference—in English law 
the bankrupt’s estate is vested in the creditor’s trustee, in Roman 
law it vested not in the magister but in the vendee, the emptor 
bonorum. 

In the last period of Roman law, such as we find in the 
time of Justinian, venditio bonorum was superseded by distractio 
bonorum, which involved no transfer of the juris universitas. <A 
curator was appointed by the praetor, and instead of selling the 
active and passive universality of the insolvent’s estate toa pur- 
chaser who became liable to the insolvent’s creditors, merely sold 
the active residue of his estate in detail. Justinian attributes 
this change to the abolition of the formulary procedure and 
generalization of cognitio extraordinaria: Theophilus, to the 
abolition of the conventus, assizes, sessions, or brief law terms 
of the provinces, and the erection of permanent provincial tri- 


bunals. But it is not easy to see in what respect the c were 
correlated. 


m. & 77-81.] INSOLVENCY. 333 


Under the empire ordinary execution (Pignoris capio) was differ- 
entiated from bankruptcy proceedings (Missio in bona) In 
Pignoris capio the court (not the creditor) was put in possession, 
and the sale took place in two months, unless the debtor paid before 
that period. In real actions the res was delivered by the court to 
the plaintiff; i.e. the court had acquired a new faculty of trans- 
muting property from the defendant to the plaintiff. Only fiscal 
debtors and insolvents were now subject to loss of freedom, and this 
was no longer incarceration, but only custodia militaris, surveillance 
by a soldier. Pignoris capio (special Real execution) was followed 
by a sale by auction (licitatio, subhastatio) conducted by apparitores 
Praetoris. Whereas under the early law creditors obtained Missio 
in bona before proof, and had subsequently to prove their claims 
against the universal successor (bonorum emptor); under the latest 
law only those creditors who had proved obtained Missio in bona, 
and then received their percentage not from the universal successor 
but at the hands of the judex, immediately from the Massa, the 
proceeds of the sales by a curator; privileged creditors receiving 
first their whole claims, unprivileged equal percentages (aequalis 
portio pro rata debiti quantitate) Two years were allowed to 
creditors in the same province, four years to creditors in different 
provinces to prove their claims; after which they retained their 
claims against the debtor,.but not against the possessing creditors. 
Bethmann- Hollweg $$ 158—160. 

Bonorum sectio differed from bonorum venditio in that it vested 
quiritary property in the vendee. Some criminal condemnations 
involved confiscation, and the sale of the criminal’s estate was 
conducted not by a magister but by a quaestor of the treasury, 
who sold under the spear, the symbol of quiritary dominion. 
Sectio bonorum transferred the juris universitas of the criminal, It 
is alluded to, 8 $ 154,4§146. Bonorum cessio, as we are expressly 
informed, Cod. 7, 71, 4, only gave the creditors a power of sale and 
did not invest them with quiritary dominion. 

The following observations may serve to supplement the brief 
remarks of Gaius on the subject of Insolvency : 

Bankruptcy proceedings are a partial execution, and therefore 
belong, not to the law of Dominion, but to the law of Obligation or 
the law of Procedure. The latter, as we have already noticed, has 
some elements which are not purely formal, but material, and as 
such are rightly admitted to a treatise on substantive law. Insol- 





334 DE RERUM UNIVERSITATIBUS. [1r. $$ 77-81. 


vency 18 placed by Gaius in the sphere of Dominion or Real rights, 
because in his day insolvency occasioned a transfer of a universitas, 
which was deemed to be a jus in rem. In later Roman law no 
such transfer occurred. 

Proceedings in Insolvency may be divided into two portions, of 
which one is (À) preparatory, and the other (B) final. 

(A) The preparatory portion includes the Proof of their debts by 
the several creditors ; the collection of the assets or formation of the 
Massa; and its sale. The collection of the assets includes, on the 
one hand, the recovery back of property that has been aliened in 
fraudem creditorum ; and, on the other, the elimination or separa- 
tion from the mass of such things found in the possession of the 
insolvent as were not really his property but the property of other 
persons called Separatists. 

Separatist claimants are those claimants 

(x) Who can sue for a thing by any form of Real action, whether 
& rei vindicatio, or aetio Publiciana, or hereditatis petitio, or actio 
confessoria brought to recover some Personal servitude like usus- 
fructus. An actio confessoria to enforce a Real servitude is obviously 
not an interest of a nature to give a right of Separation. Those 
who had a pignus or hypotheca were also ranked by the Romans 
among the Separatists: in German civil law they take their place 
among the creditors proper or concurrent. 

(2) Or Separatists are claimants who have a Personal action 
whereby they can recover some Specific thing from the possession of 
the insolvent ; such as actio commodati, depositi, locati, mandati, 
condictio furtiva, interdictum unde vi, actio de pauperie, or actio 
quod metus causa. 

(B) The final stage is the distribution of the realized proceeds of 
the present assets among the concurrent creditors according to their 
classification, The partial execution is not a discharge of the in- 
solvent, and therefore subsequent assets will be subject to a subse- 
quent distribution. 

In modern Roman law concurrent creditors are marshalled in five 
classes. 

I. Creditors with an Absolute privilege, viz. creditors for the 
funeral expenses of the insolvent. Modern law adds Servants who 
are creditors for their wages, and the Fiscus which has a claim for 
arrears, 


' 2. Privileged Hypothecary creditors, i. e. the Fiscus, the wife for 


rir. $$ 82-84. ] ADROGATIO, COEMPTIO. 335 


her dower, and any creditor who lent money for the purchase or 
conservation of the subject of hypothecation, e. g. to buy the land 
or build the house, or build, or buy, or equip the ship, that is 
hypothecated. 

3. Simple hypothecary creditors, who have priority according to 
the date of their mortgage. 

4. Privileged chirographary (merely personal) creditors, or cre- 
ditors unprotected by mortgage. Privileged are creditors who lent 
money for the repair of a house ; for the purchase, construction, or 
equipment of a ship; or depositors of money, without interest, in 


the hands of the insolvent as banker (argentarius, mensularius). 
5. Unprivileged personal creditors, Savigny, § 374; Vangerow, 


§ 598. 


DE ACQUISITIONE PER ARROGATIONEM ET PER IN MANUM 
CONVENTIONEM. 


§ 82. Sunt autem etiam alterius 
generis successiones quae neque 
lege XIi tabularum neque praetoris 
edicto, sed eo iure (quod) consensu 
receptum est, introductae sunt. 

§ 83. Etenim cum pater familias 
ge in adoptionem dedit, mulierve in 
manum conuenit, omnes eius res in- 
corporales et corporales quaeque ei 
debitae sunt, patri adoptiuo co- 
emptionatoriue adquiruntur, ex- 
ceptis his quae per capitis deminu- 
tionem pereunt, quales sunt usus- 
fructus, operarum obligatio lber- 
timorum quae per iusiurandum con- 
tracta est, et lites contestatae legi- 
timo iudicio. 


$ 84. Ex diuerso quod ts debu:t, 
qui se in adoptionem dedit quaeue 
in manum conuenit, non transit ad 
coemptionatorem aut ad patrem 
adoptiuum, nisi s? hereditarium aes 
slienum fuerit. tunc enim quia 
ipse pater adoptiuus aut coemption- 
ator heres fit, directo tenetur iure ; 
is wero qui se adoptandum dedit 
quaeue in manum conuenit, desinit 
esse heres. de eo uero quod proprio 


$ 82. There are other kinds of 
universal succession not governed by 
the law of the Twelve Tables nor by 
the praetor’s edict, but by rules of 
consuetudinary law. 

§ 83. When a paterfamilias gives 
himself in adoption, or a woman 
subjects herself to a fictitious pur- 
chaser, all their pvoperty, incor- 
poreal and corporeal, and all debts 
due to them, are acquired by the 
adoptive father and the fictitious 
purchaser, excepting such rights as 
are extinguished by loss of status— 
usufruct, for instance, bounden ser- 
vices of freedmen secured by oath, 
and claims in respect of which there 
has been joinder of issue in a sta- 
tutory trial. 

§ 84. Conversely, for what was 
owed as an inherited debt by 
the person adopted or the woman 
subjected to hand, the fictitious 
purchaser or adoptive father, by 
acquiring the succession, becomes 
directly liable, while the person 
adopted and woman sold into sub- 
jection are released from liability 
by ceasing to be successors at civil 
law; but if the debt was owed in 





836 


nomine eae personae debuerint, licet 
neque pater adoptiuus teneatur 
neque coemptionator, et me ipte 
quidem qui se in adoptionem dedit 
quaeue in manum conuenit, maneat 
obligatus obligatawe, quia sctlicet 
per capitis deminutionem liberetur, 
iamen in eum eamue utilis actio 
datur rescissa capitis deminutione ; 
et si aduersus hane actionem non 
defendantur, quae bona eorum 
futura fuissent, si se alieno iuri 
non subiecissent, uniuersa uendere 
creditoribus praetor permittit. 


DE RERUM UNIVERSITATIBUS. 


[rr. $$ 82-84. 


their own name, their adoptive 
father or fictitious purchaser incurs 
no liability while the person 
adopted and woman sold into sub- 
jection cease to be liable at civil 
law, their liability being extin- 
guished by their loss of status : they 
are liable, however, in a praetorian 
action based on a feigned restora- 
tion of their status (4 $ 38), and 
if the action is not defended the 
goods which would have belonged 
to them but for their degradation 
may be all sold by their creditors 


on obtsining the requisite permis- 
sion of the praetor. 


§ 84. See 1, 97-107 Comm., 1, 159-164. By arrogation a man 
descended from the superior status of paterfamilias to the inferior 
status of filiusfamilias, from domestic independence to domestic 
dependence. It operated, that is to say, a degradation (capitis 
minutio minima). Capitis minutio minima had various effects on 
a man's rights and obligations :— 

(a) As it implied a change of family, it entailed a loss of rights 
founded on agnation, including the sworn services of a freedman, 
for the patron was treated in certain circumstances as a quasi agnate. 

(b) It had further effects which perhaps we must be contented 
at the present day to regard as merely positive and inexplicable. 
Thus it extinguished any ususfructus or usus vested in the arrogatus. 
This effect was abrogated by Justinian, Cod. 3, 83, 1652. 

(c) It extinguished debts owed by the arrogatus. As a filius- 
familias was just as capable at civil law of incurring debts as a 
paterfamilias, it is hard to say why the passage from one condition 
to the other should operate an extinction of debt. Ihering sug- 
gests that when the lex curiata required in Adrogatio was a reality, 
it was not enacted until all proved debts of Adrogatus were dis- 
charged; and that the publicity of the proceeding made unin- 
jurious to the creditors what the protection of Adrogator required — 
the ipso facto extinction of all debts not proved before the enact- 
ment of the law. But when the people was merely represented by 
thirty lictors, and Adrogatio became comparatively a private pro- 
ceeding, the old rule had ceased to be just, and was practically 
abolished by the Praetor’s Restitutio in integrum. 


nmr$$85-87.] HEREDITATIS IN JURE CESSIO. 337 


Arrogatio in the legislation of Justinian ceased to operate a 
iransfer of the universitas juris. It only conveyed to the arro- 
gator a life estate (ususfructus) in the property of the arrogatus. 
The reversion or fee (dominium) remained in the arrogatus, Inst. 


3, 10, 2. 


Coemptio is not noticed by Justinian, as the in manum conventio 
of the wife was obsolete long before his time. 


DE HEREDITATIS IN JURE CESSIONE. 


$ 85. |/tem si legitimam here- 
ditatem. heres, antequam cer|nat aut 
pro herede gerat, alzi in iure cedat, 
pleno iure fit ille heres, cui cessa 
est hereditas, proinde ac si ipse per 
legem ad hereditatem uocaretur. 
quodsi posteaquam heres extiterit, 
cesserit, adhuc heres manet et ob id 
creditoribus ipse tenebitur; sed res 
corporales transferet proinde ac si 
singulas in iure cessisset, debita 
uero pereunt, eoque modo debitores 
hereditar#i lucrum faciunt. 


$ 86. Idem iuris est, si testamento 
scriptus heres posteaquam heres ex- 
titerit, in lure cesserit hereditatem ; 
ante aditam uero hereditatem ce- 
dendo nihil agit. 

$ 87. Suus autem et necessarius 
heres an aliquid agant in iure ce- 
dendo quaeritur. nostri praecep- 
tores nihil eos agere existimant ; 
dinersae scholae auctores idem eos 
agere putant, quod ceteri post 
aditam hereditatem; nihil enim 
interest, utrum aliquis cernendo 
aut pro herede gerendo heres fiat, 
an iuris necessitate hereditati ad- 


stringatur. 


§ 85. If a person entitled to suc- 
ceed as agnate to an intestate, before 
declaring his acceptance or acting 
as heir, surrender the inheritance in 
& fictitious vindication, the plenary 
right of succession passes to the 
surrenderee exactly as if he were 
entitled by agnation. If the agnate 
first accepts and then surrenders, 
he continues heir, and is liable to 
the creditors for the debts of the 
deceased : the corporeal subjects of 
the inheritance pass just as if they 
were separately surrendered, but 
the debts to the inheritance are ex- 
tinguished and the debtors are dis- 
charged of liability. 

§ 86. The same happens when a 
devisee accepts and then surrenders, 
but before acceptance his surrender 
is inoperative. 


§ 87. Whether a self-successor or 
8 necessary successor passes the suc- 
cession by surrender to a fictitious 
vindicator, is a question. Accord- 
ing to my school they have not the 
power : the other school think that 
the effect is the same as when the 
other heirs surrender after accept- 
ance, and that it makes no difference 
whether a man is heir by legal com- 
pulsion or by formal acceptance or 
by acts of heirship. 


§ 85. Gaius now proceeds to another mode of conveying a juris 





universitas, the conveyance by an agnate of a delated but not 
accepted inheritance. Cf. 2 §§ 84, 85. We must bear in mind: 
Z 


338 DE OBLIGATIONIBUS. [1r. $$ 88, 89. 


the distinction between heres and vocatus ad hereditatem, the offer 
(delatio) of an inheritance by the law or by a testator, and its final 
acquisition (aditio, aequisitio) by the delatee (2 § 152) In the 
case of the heres necessarius, the self-successor and the testator’s 
manumitted slave, delatio and acquisitio coincide; but in the case 
of the voluntarius heres, the agnate or the extraneus scriptus, they 
are two distinct events. An explanation of the causes of the 
different effects of an in jure cessio by these different classes might 
have thrown some light on this branch of early Roman law, but 
the reasons are not given by Gaius, and perhaps we must now 
be content to regard these distinctions as merely positive and 
inexplicable rules. Perhaps, as Ihering suggests, it was held, 
that to permit a devisee to part with the inheritance—in other 
words, to convert it into money—would have been in direct 
opposition to the testator’s intention; who, if he approved of 
such a step, might have adopted the mode of testation explained 
on 2 § 185, i.e. might have instituted not the devisee but his 
slave. 

Successio per universitatem, as already mentioned, was an in- 
stitution only recognized by the legislator in a limited number of 
cases: one individual could not make another, in pursuance of 
private convention, his universal successor. In respect of the 
voluntary transfer, inter vivos, of an inheritance, universal suc- 
cession was only admitted in two cases: transfer by an agnate of 
delata hereditas (of his right to acquire an intestate succession) 
in the interval between delatio and aditio, and transfer (restitutio) 
by a devisee of a fideicommissaria hereditas in pursuance of a 
testamentary trust, 2 § 246. 

The usual conveyance of an inheritance was not by in jure 
cessio, but by emptio venditio accompanied with tradition and 
stipulations respecting the debts to or from the inheritance, 
2 6 252. 


DE OBLIGATIONIBUS. 


§ 88. Nune transeamus ad ob- $ 88. We proceed to treat of 
ligationes. quarum summa diuisio obligations, which fall into two 
in duas species diducitur: omnis principal classes, obligations created 
enim obligatio uel ex contractu by contract and obligations created 
nascitur uel ex delicto. by delict. 

$ 89. Et prius uideamus de his — $89. We first treat of those which 


nr. $$ 88, 89.] SOLUTIO. 339 


quae ex contractu nascuntur. we founded on contract, which are 
harum autem quattuor genera of four orders, for contract is con- 
sunt: aut enim re contrahitur ob- cluded by performance, by words, 
ligatio aut uerbis aut litteris aut by writing, or by consent. 
consensu. 

Having examined Unequal primary real rights (status) and a 
portion of Equal primary real nghts, namely, property and ser- 
vitudes, and omitting the detailed examination of another portion 
of Equal primary real rights, namely, Primordial rights, we quit 
the subject of real rights, jura in rem, negative rights, or rights to 
forbearances binding indifferently all the world, and proceed to Obli- 
gations, jura in personam, positive rights; that is to say, rights to 
certain aets or performances binding exclusively certain individuals. 

The law of Obligation, at least of obligation founded on contract, 
differs from other branches of law in that its function is rather 
auxiliary to human freedom than restrictive or coercive. While 
the law of Status and the law of Property are imperious and 
peremptory and felt by the fetters they impose on human volition, 
the law of Contract is ministerial to manifestations of will, and 
fosters and protects the most diversified activity and enterprize. 
The law of Contract is the most plastic part of the code and the 
part most susceptible of development: it is the portion of, Roman 
jurisprudence which has survived with least alteration in modern 
Europe; and of all modern codes it is the portion whose relative 
importance is already the greatest and is continually increasing. 

The Obligation which is a subject of jurisprudence implies com- 
pulsion : Debitor intelligitur is a quo invito pecunia exigi potest, 
Dig. 50, 16, 108. * Debtor (obliged) denotes a person from whom 
money may be extorted against his will:’ i.e. it excludes merely 
moral duties (officia) because the sovereign applies no coercion to 
enforce their performance. 

Obligation, in the narrower sense in which we proceed to use 
the term, also excludes those duties which the legislator imposes on 
all the world alike towards a person invested with a Real right, 
whether a Primordial right, à right of Status, or a right of Do- 
minion. These duties are mainly negative, duties of forbearance 
or abstention ; whereas Obligations in the narrower sense, the sense 
in which the word is used by the classical jurists, are mainly 
positive, duties of action or performance. The former, that is, 
negative obligations, obligations correlative to jus in rem, have 
scarcely received a distinctive appellation in the Latin language: 

Z2 


340 DE OBLIGATIONIBUS. [rrr. §§ 88, 89. 


for the sake of distinction from moral duties they may be called 
Necessitas, and for the sake of distinction from Positive duties, 
Necessitas abstinendi. 

Justinian defines Obligation as follows: Obligatio est juris vin- 
eulum quo necessitate astringimur alicujus solvendae rei secundum 
nostrae civitatis Jura, Inst. 8, 18. ‘ Obligation is a legal bond, that 
is, the being compelled to some performance by the law of the state 
(power of the sovereign). 

Having formerly divided Obligations into Primary and Secondary, 
we may inquire which of these classes is more directly contemplated 
in this definition. Apparently the class of Secondary obligations: 
at least the definition is not applicable to all cases of Primary 
obligation. In Obligations ex contractu the necessitas both of the 
Primary and the Secondary obligation is a necessitas solvendi: 
in Obligation ex delicto while the necessitas of the Secondary 
obligation is necessitas solvendi; the necessitas of the Primary 
obligation (there is no Obligation in the classical sense of the term) 
is not necessitas solvendi but necessitas abstinendi. 

The performance (solutio) of which the law imposes a necessity 
when it imposes an obligation is sometimes decomposed into three 
elements, expressed by three terms, datio, factio, praestatio. In 
personam actio est quotiens cum aliquo agimus qui nobis ex 
contractu vel ex delicto obligatus est, id est, cum intendimus dare, 
facere, praestare oportere, 4 § 2. ‘A personal action pursues an 
obligation arising from contract or delict, and declares that the 
defendant is bound to convey, perform, or indemnify.’ Obliga- 
tionum substantia non in eo consistit ut aliquod corpus nostrum 
aut servitutem nostram faciat, sed ut alium nobis obstringat ad 
dandum aliquid vel faciendum vel praestandum, Dig. 44, 7, 3. 
‘An obligation does not subject a thing corporeal or incorporeal 
to our dominion, but compels a person to convey some dominion, 
or render some service, or repair some loss) Datio denotes the 
transfer of quiritarian dominion in a certain thing or sum of 
money: Factio any service (traditio, restitutio, exhibitio, &.) other 
than the transfer of quiritary dominion in a certain thing: and 
. Praestatio, apparently, the discharge of any obligation engendered 
by maleficium. 

However diversified may be the Object of an obligation, it is 
always transformable, in the eye of the law, into the payment of a 
certam sum of money. Ea enim in obligatione consistere quae 


es s -" ome 


rn. §§ 88, 89.] NATURAL OBLIGATION. 341 


pecunia lui praestarique possunt, Dig. 40, 7, 9, 2. ‘ Obligation 
can only have for its Object something redeemable and replaceable 
by money.” Hence if it is desired to bind to the performance of 
some act not in its nature susceptible of pecuniary appreciation, it 
is necessary to make the direct Object of stipulation the payment of 
a certain penal sum, and the non-performance of the act desired 
the title or condition whereupon the penal sum shall be forfeited ; 
for then the obligation, having a pecuniary value, is a civil obliga- 
tion enforceable by the tribunals. The performance of the act 
desired is thus practically enforced, although  nominally it is 
removed from the position of Object of the stipulation to that of 
Condition. 

In speaking of the right of Dominion, we have already noticed 
(2 $ 1, commentary) that besides the primary oBjEcT of the right 
(abstention from molestation), there is always a secondary object or 
SUBJECT, land, house, slave, or the like, to which such molestation 
relates. So, in view of this transformability of all Objects of 
obligation into money payments, we may say that the osJEcT of 
every obligation is an Alienation, or transfer of property ; and the 
SUBJECT is always a certain amount of Pecuniary value. 

The primary and most comprehensive division of Obligatio is one 
that has already been noticed, 1 § 1, into (A) civirIs obligatio, and 
(B) xATURALIS obligatio. 

(A) Crviris obligatio is obligation enforceable by action, whether 
it derives its origin from Jus civile, as the obligation engendered 
by formal contracte or the obligation enforceable by bilaterally 
penal suits, or from such portion of Jus gentium as had been com- 
pletely naturalized in the civil law and protected by all its remedies ; 
such as the obligation engendered by Formless contracts, and 
obligation to indemnify engendered by delict. 

(B) Obligatio NATURALIS is obligation not immediately enforce- 
able by action, or obligation imposed by that portion of Jus 
gentium which is only imperfectly recognized by Civil law; obliga- 
tion, however, which is recognized by Positive law in various 
operations, e.g. as founding a defence called Exceptio, 1.e. a con- 
tention that the right of the plaintiff, though not nullified, is 
counteracted by an opposing right of the defendant; as giving a 
right of Retention (barring condictio indebiti soluti) and Compen- 
sation; and as forming a basis of various Accessory institutes of 
Civil law, such as Novatio, Pignus, Fidejussio, Constitutum. 


342 DE OBLIGATIONIBUS. [ 111. $$ 88, 89. 


Naturalis obligatio, with its partial and occasional protection, 
may seem @ singular and anomalous institute of Roman law, but it 
is paralleled by the recognition, though to a very minor extent, 
of Imperfect obligations in English jurisprudence. Imperfect 
obligations are so called, not because they are less binding in the 
forum of conscience than those which are perfect, but because they 
are not directly enforced by political sanctions, because various 
motives induce the political legislator to exempt the debtor from 
positive coercion. Instances of imperfect obligation are debts 
barred by a statute of limitations, and debts discharged by ad- 
judication of bankruptcy. A written promise to pay by the bank- 
rupt or debtor discharged by limitation, perfects and revives the 
imperfect obligation, and makes it ground to support an action. 
As in English law a merely moral duty is an inadequate considera- 
tion to support and validate a promise to pay, the validity of such 
ratificatory promises shows conclusively that the obligation of the 
insolvent, and of the debtor discharged by limitation, is regarded 
in English jurisprudence as something more than a moral obliga- 
tion, as, to a certain extent, a legal obligation; that is, is viewed 
by English tribunals in the light in which naturalis obligatio was 
viewed by Roman tribunals. 

Civil obligations fall under two principal classes: (1) those to 
which the title or investitive fact is a CONTRACT; and (2) those 
to which the title or investitive fact is a pDELICT. In obligation 
created by contract there are two stages: there is first a primary 
or sanctioned Personal right antecedent to wrong, and afterwards - 
a secondary or sanctioning Personal right consequent on a wrong. 
In obligation founded on pzLicT there is the second stage, a 
secondary or sanctioning Personal right consequent on a wrong, but 
the first stage is not a Personal right (jus in personam), but a Real 
right (jus in rem), whether a Primordial right, right of Status, or 
of Property. 

These two typical classes, however, fail to comprehend all the 
obligations enforceable by action, and two supplementary classes 
have to be added: (3) obligations similar to those founded on 
contract; and (4) obligations similar to those founded on 
delict. 

A Contract is a convention or agreement (conventio, pactio, 
pactum) enforceable by appeal to a court of judicature. Et est pactio 
duorum pluriumve in idem placitum consensus, Dig. 2, 14, 1, 2. 


ux $$ 88, 89.] PACTA VESTITA. 343 


‘ A convention is the consent of two or more parties that a party 
shall do or not do some particular thing.’ 

Consensus, the essence of convention, will be found on close 
examination to consist not, as might at first sight appear, of two 
precisely similar elements contributed by the two consenting parties, 
but of two dissimilar elements, an intention signified by a promisor, 
and a corresponding expectation signified by a promisee. The pro- 
misor promises that he will do or perform some given act or acts, 
or that he will forbear or abstain from some given act or acts; that 
is, he signifies to the promisee that he intends to do the acts or to 
observe the forbearances which form the object of his promise: and 
the promisee accepts the promise; that is, signifies to the promisor 
his belief or expectation that the latter will do or forbear agreeably 
to the intention which he has expressed. Every convention, then, 
consists of a promise proffered and accepted ; that is, (1) of a signi- 
fication by the promising party of his intention to do the acts or to 
observe the forbearances which he promises to do or observe, and 
(2) a signification by the promisee that he expects that the promis- 
ing party will fulfil the proffered promise. Without signification 
of the intention there is no promise; without signification of the 
expectation there is no reason for enforcing the promise. The 
consensus of the parties is the chiming or going together of this 
intention with this expectation; their direction to a common 
object, the acts or forbearances contemplated by the convention. 
Pollicitation is the offer of the one party before it is accepted by 
the other. Pactum est duorum consensus atque conventio; pollici- 
tatio vero offerentis solius promissum, Dig. 50, 12, 3. 

A leading division of contracts or conventions enforceable by 
action is into FORMAL contracts, or contracts of civil law (legitimi, 
Dig. 2, 14, 5), and FoRMLxss contracts, or contracts of Jus 
gentium. Formal contracts are Nexum, Verbal contract or Stipu- 
latio, and Literal contract or Expensilatio, Formless contracts are 
Real (Mutuum, Commodatum, Depositum, Pignus, Innominate 
contract), or Consensual (Emptio, Locatio, Societas, Mandatum). 
Formal contracts derive their validity from the observance of a 
symbolic form prescribed by positive law, and calculated to inspire 
by ite solemnity serious reflection in the negotiators, and to distin- 
guish definitive resolution from preparatory negotiation and debate. 
In Real contract the earnestness and definitiveness of the resolution 
is proved by one contractor parting with property or possession. 


314 DE OBLIGATIONIBUS. [x1 $$ 88, 89. 


The obligation, too, contracted by the other party is perfectly plain, 
being in most cases simply restitution. In Exchange (permutatio), 
an Innominate contract, the duty of the promisor is not quite so 
simple; it is not restitution, but the transfer of an equivalent; and, 
aecordingly, the validity of the contract of Exchange was not 
established till a comparatively late period of Roman jurisprudence. 
The daily and hourly employment of the Consensual contracts of 
Purchase and Hiring, while it would make the requirement of any 
formality intolerably inconvenient, also renders the nature of these 
contracts perfectly familiar to all the world, so that the mere men- 
tion of their Names awakens as vivid a picture of their consequences 
as could the observance of the most ceremonious Form. In the 
remaining Consensual contracts, Agency and Partnership, the posi- 
tion of the Agent or Partner who is called to account for property 
that has passed into his hands or that has been lost by his 
negligence is so similar to that of a party to a Real contract that 
there could be no hesitation in extending to these contracts the 
protection of the public tribunals. 

A convention that was neither valid by its Form, nor was one 
of the four Consensual contracts with their familiar Names, nor 
was a Real contract, that is, a convention where on one side the 
consideration (causa praeter conventionem, Dig. 2, 14, 7, 4) was 
executed, nor was made valid by the edict or any special statute, 
was not directly enforceable at law, and was called a Nudum pactum. 
A Nude pact, though ineffectual to produce civilis obligatio, pro- 
duces naturalis obligatio. Igitur nuda pactio obligationem non 
pant, sed parit exceptionem, Dig. 2, 14, 7, 4. ‘A nude pact creates 
no (civil) obligation, but creates a defence Interest on a loan 
could only be secured by the Formal contract of Stipulatio: but 
a nude pact to pay interest could be confirmed by pignus, Dig. 13, 
7, 11, 8, and could be pleaded in bar to a suit for recovering back 
the interest when actually paid (condictio indebiti soluti): and we 
have seen that exceptio, pignus, solutum non repeti, are some of 
the criteria which indicate the existence of naturalis obligatio, 
Dig. 46, 3, 5, 2. 

Another important division of contracts is into UNILATERAL 
and BILATERAL. Wherever mutual promises are proffered and 
accepted there are in strictness two or more conventions; but where 
the performance of either of the promises is made to depend on the 
performance of the other, the several conventions are cross or impli- 


111. $$ 88, 89.] NEXUM. 345 


eated conventions, and therefore are commonly deemed one conven- 
tion. Where one only of the agreeing parties gives a promise, the 
proffered and accepted promise is called a Unilateral convention ; 
where each gives a promise, and the performance of either is made 
to depend on the performance of the other, the several proffered and 
accepted promises are called a Bilateral or Synallagmatic conven- 
tion. But strictly speaking, as before stated, every convention is 
Unilateral, and every Bilateral convention is formed by the impli- 
eation of several Unilateral conventions. The sole Unilateral con- 
ventions are Expensilatio, Stipulatio, Mutuum. Venditio, Locatio, 
Societas, are examples of Bilateral conventions. Depositum, Com- 
modatum, Pignus, Mandatum, are called imperfectly Bilateral con- 
ventions, because they do not necessarily and originally produce 
any reciprocal obligation, but only ex postfacto, i. e. in consequence 
of some occurrence subsequent to the convention. The action 
founded on the original obligation of a semi-bilateral convention, 
i.e. the action of the depositor, lender for use, pawnor, principal, 
is called judicium directum : the action founded on the accidental 
or ex postfacto obligation, i. e. the action of the depositary, borrower 
for use, pawnee, agent, is called judicium contrarium. Unilateral 
conventions, even though, like Mutuum, institutions of Jus gen- 
tium, give rise to condictiones or actions of strict civil law (stricti 
juris actiones) ; bilateral and semi-bilateral conventions give rise to 
equitable actions (bonae fidei actiones). 

The terms Unilateral and Bilateral have already been used to 
differentiate the genus of Contract, Disposition: and it may be 
useful to notice the difference of meaning which these terms bear 
in the two connections. A Unilateral Disposition is one made by 
a solitary principal disposer: e.g. in testamentary disposition all 
other persons who intervene are accessory and subordinate to the 
testator. A Bilateral Disposition, or Contract, or Convention, is 
one where there are two coordinate principal disposers. A Uni- 
lateral convention is one where there is a single promisor and 
a single acceptor: a Bilateral convention is one where there are 
two promisors and two acceptors, that is, where both parties are 
equally promisors and acceptors. 

The classification of contracts by Gaius does not include the 
Nexum. Nexum apparently had three functions: it was a solemn 
form of alienation (including testamentary disposition), a solemn 
form of obligation, and a solemn form of extinction of obligation. 


346 DE OBLIGATIONIBUS. [ru $$ 88, 89. 


Si quid eo nomine debeatur quod per aes et libram gestum est, 
86178. Nexum, Mucius Seaevola scribit, quae per aes et libram 
fiant ut obligentur praeterquam quae mancipio dentur, Varro, 6, 5. 
* Nexum, according to Scaevola, is any disposition which employs the 
bronze ingot and balance, either to produce an obligation or to aliene 
dominion.’ Nexum est, ut aft Gallus Aelius, quodcunque per aes 
et libram geritur, idque mecti dicitur; quo in genere sunt haec, 
testamenti factio, nexi datio, nexi liberatio, Festus, under the 
word ‘Nexum.’ ‘Nexum, according to Aelius, is any disposi- 
tion by means of the bronze ingot and balance, including 
testamentary disposition, formation of contract, discharge of con- 
tract. 

As a form of obligation or Contract Nexum was apparently a 
fiction of a money loan (mutuum, certa pecunia credita) : 1.e. what- 
ever the origin of the obligation, emptio, locatio, or agreement to 
pay interest, &c., the debtor was transformed by nexum info a 
borrower: he was suable by condictio; and if he was condemned 
and made default in satisfying the Judgment he was liable to manus 
injectio; i.e. to be taken into court in order that the praetor might 
award personal execution; in other words deliver him as a quasi- 
slave to the creditor (addicere, duci jubere). 

In this function, i.e. as a form of solemn contract based on the 
fiction of a loan, Nexum was abolished by the lex Poetelia, Livy, 
8, 28: in its other functions, as a form of alienation (mancipatio), 
and a form of extinction of obligation (acceptilatio), Nexum con- 
tinued to exist in the time of Gaius, 3 § 173. Savigny, Vermischte 
Schriften, 19. 

The subsequent modes of Formal contract, Literal and Verbal, 
seem like Nexum to have rested on a fiction of a loan of money. 
We are expressly told this of Expensilation or Literal contract, 
§ 129; and the etymology of Stipulatio (stips— pecunia) seems to 
show that verbal contract also was originally based on the sup- 
position that money had passed between the creditor and debtor. 
But though Expensilatio and Stipulatio resembled Nexum in being 
fictions of a loan and ground to support Condictio certi, they did 
not resemble it in rendering the judicatus in such a condictio liable, 
on default of satisfying the judgment, to personal execution. 

The arrangement adopted by Gaius is not without significance. 
He begins with a Real, that is, a Formless contract, found in the 
code of Natural law; and from these Real contracts he selects 


rr. §§ 90, 91.] RE CONTRACTA OBLIGATIO. 347 


Mutuum, the type, that is to say, which Formal contracts sub- 
sequently imitated and feigned. He then proceeds to Formal 
contracts, Verbal and Literal; and concludes with the remaining 
class of Formless contracts, namely the Consensual, This is per- 
haps the chronological, as well as the logical, order in which 
contracts were developed. 


QUIBUS MODIS RE CONTRAHATUBR OBLIGATIO. 


$ 90. Re contrahitur obligatio 
uelut mutui datione. (mutut au- 
tem datio) proprie in his [fere] 
rebus contingit quae pondere nu- 
mero mensura constant, qualis est 
pecunia numerata uinum oleum 
frumentum aes argentem aurum. 
quas res aut. numerando aut me- 
tiendo aut pendendo in hoc damus, 
ut accipientium fiant et quandoque 
nobis non eaedem, sed aliae eius- 
dem naturae reddantur. unde 
etiam mutuum appellatum est, quia 
quod ita tibi a me datum est, ex 
meo tuum fit. 


$ 91. Is quoque qui non debitum 
accepit ab eo qui per errorem sol- 
uit, re obligatur. nam proinde ei 
condici potest SI PARET EVM DARE 
OPORTERE, ac ri mutuum accepis- 
set. unde quidam putant pupillum 
aut mulierem cui sine tutoris auc- 
toritate non debitum per errorem 
datum est, non teneri condictione, 
non magis quam mutui datione. 
sed haec species obligationis non 
uidetur ex contractu consistere, 
quia is qui soluendi animo dat, 
magis distrahere uult negotium 
quam contrahere. 


$ 90. Of real contracts, or con- 
tracts created by performance, we 
have an example in loan for con- 
sumption, or loan whereby property 
is transferred. This chiefly relates 
to things which are estimated by 
weight, number, or measure, such 
as money, wine, oil, corn, bronze, 
silver, gold. We transfer our pro- 
perty in these on condition that the 
receiver shall transfer back to us 
at a future time, not the same 
things, but other things of the same 
nature: and this contract is called 
Mutuum, because thereby meum 
becomes tuum. 

§ 91. The receiver of what was 
not owed from a person who pays 
in error is also under a real obliga- 
tion, for he may be sued by Con- 
dictio with the formula: ‘If it be 
proved that he ought to convey,’ 
just as if he had received the pro- 
perty in pursuance of a loan. And, 
accordingly, some have held that 
a ward or female, if their guardian 
has not authorized them to receive 
8 payment, are not liable to be sued 
for money paid in error any more 
than they are for money received 
as a loan. This, however, is a mis- 
take, as the liability is not founded 
on contract, for a payment in order 
to discharge a debt is intended to 
extinguish an obligation, not to 
establish one. 


§ 90. The thing to be restored by the borrower in a loan for con- 
sumption was not the specific thing that was borrowed, but some 
other thing of the same genus. Such members of a genus as are 


348 DE OBLIGATIONIBUS. [111. $$ 90, 91. 


naturally capable of mutual substitution (quae vice mutua fungun- 
tur) received from modern civilians the barbarous name of res 
fungibiles, A more significant barbarism, if any was necessary, 
would have been res vieariae, from the principal word of the 
definition. The classical name was neither res fungibilis, nor res 
vicaria, but Quantitas, Dig. 44, 2, 7, pr. 

§ 91. The auctoritas of the guardian was only wanted to supply 
the will or intention required in a disposition or contract. As 
Condictio indebiti, the action brought for recovering money paid 
by mistake, was not founded on disposition or contract, but on the 
fact that a defendant had been without cause enriched at the ex- 
pense of the plaintiff, there seems to be no reason why it should 
not be brought against a ward who receives without his guardian's 
sanction money to which he is not entitled, except that the ward 
could not repay the money unless the guardian sanctioned the 
repayment. Justinian decides that the ward is not under the 
circumstances liable to condictio indebiti, Inst. 3, 14, 1. 

The obligation arising by a contract of mutuum is only an obli- 
gation to repay the principal of the debt. The loan is regarded as 
gratuitous; if any interest is intended to be paid, it requires to be 
secured by an accompanying verbal contract, or stipulation. The 
repayment of the principal was enforced by the general personal 
action of condictio. See 4, 49 comm. 

Connected with the contract of mutuum was the senatuscon- 
sultum Macedonianum, named, according to Theophilus, after a 
parricide, according to some commentators, after a money-lender. 
This decree passed, according to Tacitus, under Claudius (Annales, 
11, 18), according to Suetonius, under Vespasian (Suet. Vesp. 11), 
prohibited lending money to a person under power (filiusfamilias) 
without the consent of the father. Neither the age nor the rank 
of a filiusfamilias affected his incapacity to contract a pecuniary 
loan. The disability of the filiusfamilias did not extend to any 
contract other than a pecuniary loan. 

By the English law bargains made with expectant heirs and 
remaindermen, during the lifetime and without the knowledge of 
the parent, may be set aside b y a court of equity on the ground of 
unfairness or inadequacy. 

Besides the mutuum there are four other Real contracte, Com- 


modatum, Depositum, Pignus, Innominate contract; each of which 
requires a brief notice. 


iui. $$ 90, 91.] HYPOTHECA. 349 


Commodatum, a loan for use, is the gratuitous lending of an 
article to be used by the borrower. It must be gratuitous, for, if 
any compensation is to be paid, the transaction ceases to be a com- 
modatum, and becomes a letting and hinng (locatio conductio). A 
loan for use differs from a mutuum, or loan for consumption, in that 
it passes no property to the borrower. Accordingly, in a loan for 
use the specific thing that was lent is to be returned, whereas in 
a loan for consumption it is only to be returned in kind. Again, 
in ease of destruction by an inevitable accident, as fire, shipwreck, 
or invasion, in à mutuum the loss falls on the borrower, in a com- 
modatum on the lender. The commentators have expressed this by 
the formula, res perit domino, *the loss from destruction falls on 
the proprietor’; and this proposition holds good of contracts of 
mutuum and eommodatum and some others; but in a sale (emptio 
venditio), as soon as the obligation is complete, before the property 
has passed by delivery to the buyer, if the thing is destroyed without 
the fault of the vendor, the loss falls on the buyer, and he can be 
compelled to pay the purchase-money, although the subject of sale 
has never been in his possession, Inst. Just. 8, 28 § 3. We must 
not identify the borrower's right to use, which consists in an 
obligation, with the servitude (jus in re) or fraction of proprietor- 
ship called Usus, which is created by other methods and governed 
by different rules. (For the law relating to the liability of com- 
modatarius and other bailees on account of negligence, see comm. 
at the end of this book.) 

Depositum is the delivery of a thing for custody, to be re- 
delivered on demand, without compensation. It is properly gra- 
tuitous, for if a compensation is to be given it is & contract of 
hiring and letting, and not a deposit. The property remains in 
the depositor; the depositary has sometimes Possession, but, as a 
rule, merely Detention. The identical thing that was deposited 
is to be returned, not an equivalent of the same kind or quality, 
as in mutuum. An involuntary depositor, that is, one under stress 
of shipwreck, fire, civil commotion, the fall of a house, can sue in 
penal damages for twice the value of the deposit. Sequestration is 
the deposit of a subject of htigation by consent of parties or order 
of the court in the hands of a stakeholder (sequester) to abide the 
result of the trial When a depositary is bound to restore not a 
specific thing (idem) but ite equivalent, and by a pactum adjectum 
pays interest for the privilege of using it in the interim ; e.g. when 


350 DE OBLIGATIONIBUS. (mx. $$ 90, 91. 


a banker pays interest to his depositors; the convention is called 
Depositum irregulare, and dominion in the thing deposited, as well 
as possession, passes to the depositary. Dig. 16, 3, 24, The 
passages in the Digest relating to this show that Banking in the 
modern sense of the word, i.e. the payment of a small interest to 
depositors and receipt of a large interest from borrowers of the 
deposit, was practised by Roman Mensularii, Vangerow, § 630. 

Pignus, pledge, pawn, or mortgage, is the transfer of a qualified 
property (jus in re aliena) in a thing, movable or immovable, to be 
held as a security for a debt, and to be retransferred when the debt 
is satisfied. 

There are three forms of Pignus, corresponding to three eras 
in the development of Roman law, which must be separately 
examined. 

(1) The earliest form of pledge was effected by a mancipatio 
or in jure cessio, accompanied with a fiducia, or contract for 
reconveyance. This ceremony was employed in the contract of 
pledging, in the contract of deposit, and as we have seen, 1 § 182, 
in the emancipation of children, cf. 2 § 60. 

(2) Pignus was effected by delivery of possession without the 
solemnities of mancipatio. The mortgagor continued to be pro- 
prietor of the thing pledged. 

(3) Hypothecation was effected by mere convention without deli- 
very of possession. It was a pure Alienation of a jus in re, imposing 
no Obligation. Pignus combined this with Obligations of the 
mortgagee, conferring a Personal action on the mortgagor. 

. The action of the mortgagee to recover the thing pledged, called 
quasi Serviana, hypothecaria, or pigneraticia, was a real action or 
vindicatio. It was probably an actio arbitraria with a formula 
in factum concepta (these terms will be explained in Book IV, 
§ 47 comm.) to something like the following effect: ‘If it be 
proved that such and such land (being the property of the de- 
fendant) was mortgaged by the defendant to the plaintiff as security 
for the payment of such and such a debt, and that such debt has 
not been paid [factum], do thou, Judex, condemn the defendant in 
damages to the amount of the loss that the plaintiff shall have 
sustained, unless at thy order he deliver such land to the plaintiff 
or pay the said debt [arbitrium]; in absence of such proof, pro- 
nounce the defendant's absolution.’ As the Intentio is not in jus 
concepta, it contains no definition of the nature of the right, real 





ni$$90,91. NAMELESS REAL CONTRACT. 351 


or personal, which the plaintiff alleged. We know that in the 
present case it was a real right. 

Besides the actio Hypothecaria, whereby the rights of the mort- 
gagee were definitively decided, there was an Interdictum Salvianum, 
4 § 147, to enable the mortgagee to recover interim or provisional 
possession of the thing mortgaged pending the definitive litigation. 
Ite formula was probably something like the following: ‘ If such 
and such a slave is one of the things respecting which you agreed 
with the plaintiff that whatever was inducted, illated, imported 
into such and such land, or was thereon born or produced, should 
be pledged to the plaintiff to secure the payment of the rent of 
such land; in that case I prohibit your employment of force to 
hinder the plaintiff from abducting the slave) Thus the relation 
of actio Hypothecaria to interdictum Salvianum would resemble 
that of Vindicatio to the interdict Utrubi or Uti possidetis, 4 $ 148, 
or that of Hereditatis petitio to the interdict Quorum bonorum, 
4 $ 144. 

Innominate or unnamed contract is a Bilateral convention for 
reciprocal performances followed by execution on the part of one 
of the contractors. A bilateral Convention followed by execution 
is Real; not followed by execution it is Consensual. Bilateral 
conventions, Real or Consensual, fall into four classes: Aut enim 
do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias, 
Dig. 19, 5, 5, pr. ‘There may be conveyance in consideration of 
conveyance, or conveyance in consideration ‘of performance, or 
performance in consideration of conveyance, or performance in con- 
sideration of performance. Some of such conventions, though not 
followed by execution, would give rise to Named consensual con- 
tracts, sale, letting, partnership, or mandate; and then would 
be enforced by the tribunals: while those conventions un- 
accompanied by execution whose nature excluded them from these 
appellations, would have no legal validity. Those conventions 
which to consensus add execution, but fail to satisfy the definitions 
of the Named Real contracts, are thrown into a miscellaneous 
class called contracts Innominate. We have thus the following 
classification, Contracts are (1) Formal (verbis) or informal, and 
then either (2) not real but named (consensual), or (3) real and 
named (mutuum), or (4) real but nameless (innominate). To what- 
ever category innominate contracts belonged, do ut des, do ut 
facias, facio ut des, facio ut facias, they were enforceable by a civil 


352 DE OBLIGATIONIBUS. [mrr. $$ 90, 91. 


action called actio in factum praescriptis verbis. Dig. 9, 5, 15, 
ibid. 22, ibid. 25. 

The binding virtue of execution or delivery (traditio) was one 
of the oldest principles of Roman law. In traditionibus rerum, 
quodeunque pactum .sit, id valere, manifestissimum est, Dig. 2, 14, 
48 (from the commentary of Gaius on the Twelve Tables): and 
this principle was, perhaps, the basis of the ordinance, Cum nexum 
faciet mancipiumque, uti linguá nuncupassit, ita jus esto: which 
afterwards remained in force when the traditio in a disposition by 
Nexum was merely symbolic. 

The actio in factum praescriptis verbis was so denominated because, 
in the absence of a generic name for the contract, the fact begetting 
the obligation was detailed at length in the demonstratio of the 
formula: Actio quae praescriptis verbis rem gestam demonstrat, 
Cod. 2, 4, 6. Hence it is often called actio in factum praescriptis 
verbis. This, however, is a misleading name, because it might 
lead us to suppose that the formula had an intentio in factum. 
But it is a civil action, and the formula contains the word ‘ oportet ' 
(quidquid ob eam rem illum illi dare facere oportet), that is to say, 
has an intentio in jus, cf. 4 $$ 45, 46, The name of this Roman 
action ex contractu may be illustrated by a comparison with the 
name of an English action ex delicto, trespass on the case, so 
named from the comparative particularity with which the cireum- 
stances of the plaintiff's case are detailed in the written allegations. 
It is sometimes called actio civilis ?ncerí? because it is brought to 
recover damages (quanti interest). 

Examples of Innominate contract are Exchange (permutatio), 
Dig. 19, 4; Compromise (transactio), Dig. 2, 15; Cod. 2, 4; Con- 
ditional sale (aestimatum), that is to say, a promise to pay a certain 
price for an article if the promisor succeeds in reselling it at a 
profit, with a power, in the opposite event, of returning the article 
to the promisee, Dig. 19, 8; and Permissive occupancy (precarium), 
or permission, at the request (precibus) of the grantee, to use an 
article without compensation, with a proviso for redelivery on 
demand. The precarious grantee (precario rogans), as a rule, has 
Possession, but by special agreement may have mere Detention; 
whereas the borrower for use (commodatarius) in every case has 
only Detention. 

Praescriptis verbis was an equitable action (ex fide bona) to 
recover not merely the value conveyed, but also damages for the 


rr. $$ 92-96. ] STIPULATIO. 353 


loss sustained by the plaintiff from default of specific performance. 
When the executed part of the convention was a conveyance, if 
restitution was a sufficient compensation, the thing conveyed might 
be recovered back by condictio caus& datá, causéi non secutá, i.e. a 
suit to recover property conveyed for a consideration which has 
failed. ‘ Praescriptis verbis is brought to recover, not restitution, 
but damages equal to the plaintiff's interest in a specific perform- 
ance. Restitution may be enforced by a suit for reconveyance 
upon failure of consideration.’ Dig. 19, 5, 5 §1. 

It may illustrate the Roman conception of Innominate or Real 
contract if we indicate the change that has supervened in this 
matter from the greater force that is conceded to mere convention 
(nuda voluntas) in modern jurisprudence. 

With the Romans the execution by one of the parties of his part 
of an Innominate bilateral convention was essential to its efficacy. 
This execution differentiated the convention from a nudum pactum 
and gave it validity, but, naturally, only against the party who had 
not executed. The party who had executed was not similarly bound: 
he had a right of abandoning the contract and recovering back 
what he had delivered, not merely when the counter-execution was 
not made at the time appointed, or had become impossible by the 
culpa of the other party, or had been always impossible (condictio 
ob causam non secutam); but when the party who had delivered 
simply changed his inclination (condictio ex mera poenitentia). 

In German jurisprudence, on the contrary, where every pactum 
is treated as if it had been accompanied by Stipulation, that is, had 
the validity given by Form— where, in other words, no pacta are 
nuda, all are vestita —2 convention is enforceable irrespectively of its 
part-execution : it is enforceable irrespectively of execution against 
both parties alike, who herein stand on precisely the same footing : 
that is to say, the party who has delivered what he had to deliver 
has no right to recover it back either ex mera poenitentia, or ob 
causam non secutam, but merely the power to compel the other 
party to a corresponding performance. Vangerow, $ 599. 


DE VERBORUM OBLIGATIONE. 


$92. Verbis obligatio fit ex § 92. A verbal contract is formed 
interrogatione et responsione, ue- by question and answer, thus: ‘Art 
luti DARI SPONDES? SPONDEO, DA- thou sponsor to me for the convey- 
»181 DABO, PROMITTIS? PROMITTO, ance?’ ‘I am sponsor to thee for the 


A8 


354 


FIDEPROMITTIS ? FIDEPROMITTO, FI- 
DEIVBES } FIDEIVBEO, FACIES} FA- 
CIAM. 


$ 93. Sed haec quidem uerborum 
obligatio DARI SPONDES? SPONDEO 
propria ciuium Romanorum est; 
ceterae uero iuris gentium sunt, 
itaque inter omnes bomines, siue 
ciues Romanos siue peregrinos, ua- 
lent. et quamuis ad Graecam uo- 
cem expressae fuerint, ueluti hoc 
modo (Adces; Adcw' ‘Opodoyeis ; 
“Opodoya’ THiores keAeveic ; Diores xe- 
Acta’ Iloijjces; lloro), [etiam 
haec] tamen inter ciues Romanos 
ualent, si modo Graeci sermonis 
intellectum habeant. et e contrario 
quamuis Latine enuntientur, tamen 
etiam inter peregrinos ualent, si 
modo Latini sermonis intellectum 
habeant. at illa uerborum obligatio 
DARI SPONDES ? SPONDEO adeo pro- 
pria ciuium Romanorum est, ut ne 
quidem in Graecum sermonem per 
interpretationem proprie transferri 
possit, quamuis dicatur a Graeca 
uoce figurata esse, 

$ 94. Vnde dicitur uno casu hoc 
uerbo peregrinum quoque obligari 
posse, ueluti si imperator noster 
principem alicuius peregrini populi 
de pace ita interroget PACEM FYTV- 
RAM SPONDES uel ipse eodem modo 
interrogetur. quod nimium sub- 
tiliter dictum est, quia si quid ad- 
uersus pactionem fiat, non ex stipu- 
latu agitur, sed iure belli res uin- 
dicatur. 


$95. Illd dubitari potest, si 
quis | 








DE OBLIGATIONIBUS. 


[xnr. $6 92-96. 


conveyance. ‘ Wilt thou convey ?’ 
‘I will convey.’ ‘Dost thou pledge 
thy credit?’ ‘I pledge my credit.’ 
‘Dost thou bid me trust thee as 
guarantor ?’ * I bid thee trust me as 

tor.’ ‘Wilt thou perform ? 
‘I will perform.’ 

§ 93. The formula: “‘ Art thou 
sponsor ?' ‘I am sponsor,’ " is only 
valid between Roman citizens; the 
others belong to gentile law, and 
bind all parties, whether Romans 
or aliens, and, if understood, bind 
Romans when expressed in Greek, 
and aliens when expressed in Latin. 
The formula, ‘ Art thou sponsor ?’ is 
so peculiarly Roman that it cannot 
be expressed in Greek, though the 
word ‘sponsor’ is said to have a 
Greek origin, 


$ 94. According to some, there ia 
one case in which an alien may 
be bound by this word, namely, 
when & Roman emperor in con- 
cluding a treaty thus interrogates 
& foreign sovereign: *Art thou 
sponsor for peace ?’? and a Roman, 
they hold, may similarly be bound 
to an alien, But here the word 
bound is not used in its civil mean- 
ing, for the violation of a treaty 
between sovereign states is not re- 
dressed by the legal process of a 
suit founded on stipulation, but by 
martial process and the arbitrement 
of the sword. 

$95. (It may be questioned 
whether if the question is in the 
form ‘Art thou sponsor?’ and the 


nr. $$ 92-96. ] 


$ 95a. (Sunt et aliae obliya- 
tiones, quae nulla praecedente. in- 
terrogatione contrahi possunt, td 
est ut si mulier siue. sponso. uxor 
futura sive tam marito dotem dicat. 
quod tasn de mobilibus rebus quam 
de fundis fieri potest. Et mon 
solum in hac obligatione ipsa mu- 
lier obligatur, sed et pater eius, et 
debitor ipsius mulieris, st pecuniam 
quam tlli debebat, sponso creditricis 
ipse debttor in dotem dixerit. Hae 
tantum tres personae nulla inter- 
royatione praecedente possunt dic- 
tione dotis legitime obligari. | aliae 
wero personae si pro muliere dotem 
uiro promiserint, communi ture 
obligari debent, td est ut et inter- 
rogata respondeant et stipulata pro- 
mittant. 

$ 96. ltem et alio casu uno to- 
quente et sine interrogatione. alis 
promittente contrahitur | obligatio, 
td. est st libertus patrono aut donum 
aut munus aut operas se daturum 
esse turautt, in qua re supra dicti 
liberti non tam uerborum | sollem- 
nitate quam turisiurandi religione 
tenentur ; sed nulla altera. persona 
hoe ordine obligari potest.) haec 
sola causa est, ex qua iureiurando 


contrahitur obligatio. sane ex 
alia nulla causa iureiurando 


homines obligantur, utique cum 
quaeritur de iure Romanorum. 
nam apud peregrinos quid iuris 
sit, singularum ciuitatium iura re- 
quirentes aliud intellegere pote- 
rimus —. 


FORMAL CONTRACT. 


855 
answer to it is, ‘I promise, or ‘ft 
will give,’ any legal obligation js 
created.) 

§ 95a. (There are also other ob- 
ligations which can be contracted 
without any antecedent question, as 
when & woman makes a solemn de- 
claration settling a dotal estate, 
movable or immovable, on her be- 
trothed or her husband. And not 
only can the woman herself be 
bound in this form, but also her 
father and her debtor, the latter 
having to declare that he owes 
the debt to her future husband as 
dower. It is only by these three 
persons that dower can be promised 
without using the common form of 
question and answer. 


§ 96. There is another case in 
which an obligation ig contracted 
by a declaration of one of the 
parties without any previous inter- 
rogation, which is when a freedman 
takes an oath to his patron pro- 
mising some payment or perform- 
ance of some function or service, 
the obligation being created in this 
case not so much by the form of 
words as by the sanctity attaching to 
the oath. This is the only instance 
in Roman law of an obligation being 
contracted by means of an oath, 
though if we searched the parti- 
cular laws of foreign communities, 
other instances might be found.) 


§ 92. Before we proceed to examine Formal, that is to say, 
Verbal and Literal contracts, it is desirable, at the risk of some 
repetition, to review the general nature of Title. 

A Title is a fact, incident, or event, to which the law annexes 
a right or obligation; or it is a fact by which the law confers a 
right or imposes an obligation on a person; or it is an incident 

A 8 2 


356 DE OBLIGATIONIBUS. [rr. $$ 92-96. 


through which the law invests a person with a right or obligation ; 
or, extending its function, it is an event which gives a beginning 
or pute an end to a right or obligation; it is a fact, incident, or 
event, whereby the law invests with a right or diveste of a right ; 
or a fact, incident, or event, whereby the law burdens us with an 
obligation or exonerates from an obligation. 

When this fact is a lawful act designed to invest in the mode 
prescribed or permitted by the legislator certain persons with certain 
rights and obligations, it is called a Disposition (Rechtsgeschaeft). 
Dispositions, e.g. contract, release, alienation, emancipation, adop- 
tion, marriage, testation, succession, joinder in issue (litis contesta- 
tio), &c. are as diversified in character as are the parts of the statute 
book of which they are applications: but nevertheless have many 
common or generic features which demand, what they have not re- 
ceived in text books of English jurisprudence, a common examination. 

The rights conferred through a title may be jura in rem, avail- 
able against all the world, including both rights of status and righte 
of property ; or jura in personam, available only against a determinate 
person. It is with the latter that we are at present concerned. 

The facts called Titles, whether they confer a jus in rem or a 
jus in personam, are never absolutely elementary,—are always de- 
composable into a bundle of more elementary facts. Nevertheless, 
and with this reservation, Titles may be divided into such as are 
comparatively simple, and such as are comparatively complex. 

The bundle of facts composing a comparatively complex Title 
can usually be divided into two portions, one of which may be 
called principal or essential, the other secondary or adventitious. 

For instance, in the bundle of facts composing an alienation, or 
creating a jus in rem, the essential or principal portion is the free 
will and intention of the alienor to divest himeelf of a right and 
invest the alienee with it, and the acceptance of the proffered right 
by the alienee: the accessory and adventitious portion is the signi- 
fication of these intentions by the execution of a certain written 
instrument or deed, and their completion by the solemn delivery 
and acceptance of seisin or possession. 

A Formal Disposition is one for which, under pain of nullification, 
the necessary or exclusively valid form of expression or mani- 
festation of intention is prescribed by the legislator. A Formless 
Disposition is one where the individual is free to choose the form 
of expressing, or mode of manifesting, his intention. 


ur $$ 92-96.] FORMAL CONTRACT. 357 


These accessory formalities and solemnities are ancillary to the 
essential purpose of the transaction, being destined partly to prevent 
rash and inconsiderate engagements, partly to furnish evidence and 
proof of the convention or principal part of the transaction. 

Indeed, the accessory portion of the Title may contain an element 
still more remotely and casually connected with the principal 
transaction, such as the stamp affixed to the document executed 
by the parties. The stamp in no way contributes to the purpose 
and intention of the parties, but the legislator makes it necessary 
to the validity of the transaction from financial motives, for the 
sake, namely, of the publie revenue. 

Setting aside this purely arbitrary addition to the Title, we may 
say that the function of the Title is not only to be the antecedent 
to which the law annexes as a consequent a certain right or obliga- 
tion, but also to be a sign, badge, or manifestation, to denote to the 
world the person in whom a right has vested, or on whom an 
obligation has become incumbent. 

The peculiar characteristic of Formal, that is to say, Verbal and 
Literal contracts, is this: evidentiary solemnities compose in these 
contracts an indispensable part of the title to a jus in personam. 
The Formless contracts, namely, the Real contracts, of which we 
have already treated, and the Consensual contracts, of which we 
shall treat hereafter, cannot, indeed, be enforced in a court of law 
unless they are proved to have been concluded, unless, that is, 
evidenee be given of their existence. But the contract and the 
evidence of the contract are distinct and independent. In Formal 
contracte & preappointed evidence of the essential portion of the 
contract, that is, of the intention of the promisor and expectation 
of the promisee, is made by the legislator a constituent accessory 
element of the contract or title itself. It is not perfect or complete 
without this evidence. If the transaction did not include certain 
preappointed evidentiary formalities, the Verbal or Literal contract 
has never been formed and does not exist. 

$ 93. Why was Sponsio binding on Romans and not on strangers ? 
Possibly because originally it was an oath or adjuration of the 
tutelary gods of Rome, who would not be an object of reverence to 
a stranger. 

§ 94. The obligation of an independent sovereign state to 
another independent sovereign state does not resemble the obliga- 
tion of one subject to another subject of the same sovereign or 





358 DE OBLIGATIONIBUS. [1m. $$ 92-96. 


political superior. If a contract between two subjects is broken, 
it is enforced by the power of the common sovereign. But if a 
treaty between two sovereigns is violated, there is, by hypothesis, 
no common superior by whom it may be enforced. The treaties of 
sovereign states correspond to the moral obligations of individuals. 
They may be binding in the forum of conscience or of heaven, but, 
if these are disregarded, are not enforced by any earthly tribunal. 
The moral obligation is not secured by any legal sanction; and 
the sovereign whose treaty rights are violated can obtain no redress 
except from his own power of inflicting evil on the violator. 

Or we may compare the relation of sovereign states to the re- 
lation of individuals before the complete establishment of political 
society. There is then sufficient intercourse to form a public 
opinion and certain conceptions of rights and wrongs; but not 
sufficient organization to dispense with the necessity of self- 
vindication or self-defence. In such a state the redress of the 
individual for the harms he suffered was by feud or private war. 
That such a state once existed we know from the early history 
of our ancestors and their Teutonic kinsmen. So the redress of 
sovereigns is war or public feud. In the controversies of indi- 
viduals the system of private war was abolished in this country 
by the proclamation of ‘the king’s peace,’ renewed at every coro- 
nation—the symbol of the consolidation of central authority. For 
the controversies of peoples no such abrogation of warlike process 
seems possible, 

Jus in the expression jus belli appears to signify not right or 
law but sanction, or executive power, or means of compulsion. That 
this was one of the many meanings of the word appears from Ovid, 
who uses the following terms to express a want of self-control: 
Nam desunt vires ad me mihi jusque regendum. Amor, 2, 4. 

The necessity of employing any consecrated terms in a stipulation 
was abrogated by a constitution of Leo, dated the calends of 
January, A.D. 469. Omnes stipulationes, etiamsi non solennibus 
vel directis sed quibuseunque verbis consensu contrahentium com- 
positae sunt [vel], legibus cognitae suum habeant firmitatem, Cod. 
8, 38, 10. ‘Stipulations, though not in consecrated formulas or 
direct terms, in whatever words the agreement of the parties is 
expressed, if otherwise legal, shall have binding force.’ 

$$ 95a, 96. The text is taken from the epitome of Gaius, 2, 9, 3, 
contained in the law of the Visigoths (Breviarium Alariei). 


m1. § 97-109.] DE INUTILIBUS STIPULATIONIBUS. 359 


The following passage of Ulpian respecting the modes of con- 
stituting dos may be compared with § 95a. Dos aut datur, aut 
dicitur, aut promittitur. Dotem dicere potest mulier, quae nuptura 
est, et debitor mulieris, si jussu ejus dicat, item parens mulieris 
virilis sexus, per virilem sexum cognatione junctus, velut pater, avus 
paternus. Dare, promittere dotem omnes possunt, Fragm. 6 $$ 1, 2. 

By a constitution of the Emperor Theodosius II any third person 
was made capable of binding himself by a simple promise of dower 


without a stipulation. 


Jurata promissio liberti was the sworn promise of a freedman, 
immediately after his manumission, to render certain services 


(operae) to his patron. 


It was usual to bind the conscience of the 


slave by a similar promise before manumission ; but such a promise 


had no legal operation. 


The right of a patron to the operae of his 


freedman was put an end to by the capitis diminutio of either 
patron or freedman, § 88, patronatus being assimilated to agnatio. 


DE INUTILIBUS STIPULATIONIBUS. 


$ 97. Si id quod dari stipulamur, 
tale sit, ut dari non possit, inutilis 
est stipulatio, uelut si quis homi- 
nem liberum quem seruum esse 
credebat, aut mortuum quem uiuum 
esse credebat, aut locum sacrum 
uel religiosum quem putabat hu- 
mani iuris esse, dari (stipuletur. 


$ 97a. Item si quis rem quae in 
ferum natura esse non potest, uelut 
hippocentaurwn,) stipuletur, aeque 
inutilis est stipulatio, 

§ 98. Item si quis sub ea condi- 
cione stipuletur quae existere non 
potest, ueluti si digito caelum teti- 
gerit, inutilis est stipulaéio. sed 
legstum sub inpossibili condicione 
relictum nostri praeceptores pro- 
inde deberi putant, ac si sine con- 
dicione relictum esset; diuersae 
scholae auctores nihilo minus lega- 
tum inutile existimant quam stipu- 
lationem. et sane uix idonea di- 
uersitatis ratio reddi potest. 


$ 97. The impossibility of a 
stipulated conveyance vacates the 
stipulation ; for instance, if a man 
stipulates for the conveyance of a 
freeman whom he supposes to be 
a slave, or of a dead slave whom he 
supposes to be alive, or of ground 
devoted to the celestial or infernal 
gods which he supposes to be a 
subject of commerce. 

$ 97 a. Or again if a man stipu- 
lates for a non-existent thing, such 
as a hippocentaur, the stipulation 
is void. 

§ 98. An impossible condition, 
that the promisee, for instance, 
should touch the sky, makes the 
stipulation void, although a devise 
with an impossible condition, ac- 
cording to the authorities of my 
school, has the same effect as if the 
condition were not annexed. Ac- 
cording to the other school it is as 
null and void as if it were a stipu- 
lation, and in truth no satisfactory 
reason can be alleged for making 
@ distinction. 


360 


§ 99. Praeterea inutilis est stipu- 
latio, si quis ignorans rem suam 
esse, dari sibi eam stipuletur; 
quippe quod alicuius est, id ei dari 
non potest. 

§ 100. Denique inutilis est talis 
stipulatio, si quis ita dari stipule- 
tur POST MORTEM MEAM DARI SPON- 
DES uel ita (POST MORTEM TVAM 
DARI SPONDES?, ualet autem, st quis 
ita dari stipuletur CVM MORIAR 
DARI SPONDES | uel ita) CVM MO- 
RIERIS DARI SPONDES? id est ut 
in nouissimum uitae tempus stipu- 
latoris &ut promissoris obligatio 
conferatur. nam inelegans esse 
uisum est ab heredis persona in- 
cipere obligationem. rursum ita 
stipulari non possumus PRIDIE QVAM 
MORIAR, aut PRIDIE QVAM MORI- 
ERIS DARI SPONDES quia non po- 
test aliter intellegi *pridie quam 
aliquis morietur, quam si mors 
secuta sit; rursus morte secuta in 
praeteritum reducitur stipulatio et 
quodammodo talis est HEREDI MEO 
DARI SPONDES? quae sane inutilis 
est. 

§ 101. Quaecumque de morte 
diximus, eadem et de capitis demi- 
nutione dicta intellegemus. 

$ 102. Adhuc inutilis est stipu- 
latio, si quis ad id quod interro- 
gatus erit, non responderit, ueluti 
si sestertia X a te dari stipuler, et 
tu sestertia 7 promittas, aut si ego 
pure stipuler, tu sub condicione 
promittas. 

$ 103. Praeterea inutilis est sti- 
pulatio, si ei dari stipulemur, cuius 
iuri subjecti non sumus. unde illud 
quaesitum est, si quis sibi et ei 
cuius iuri subiectus non est, dari 
stipuletur, in quantum ualeat sti- 
pulatio. nostri praeceptores putant 
in uniuersum ualere et proinde ei 
soli qui stipulatus sit, solidum de- 
beri, atque si extranei nomen non 
adiecisset. sed diuersae scholae 
auctores dimidium ei deberi existi- 


DE OBLIGATIONIBUR. 


[rrr. $$ 97-109. 


$ 99. So a stipulation to convey 
the promisee's property to the pro- 
misee is null and void, for the con- 
veyance is impossible, 


§ 100. A stipulation to convey 
after the death of the promisee or 
promisor is invalid, but a stipula- 
tion to convey at the death, that is, 
at the last moment of the life of the 
promisee or promisor, is valid. For 
it has been held anomalous to make 
the successor of either of the con- 
tracting parties the first subject of 
the obligation. Again, a stipula- 
tion to convey on the day before 
the death of the promisee or pro- 
misor is invalid, for the day before 
the death cannot be ascertained till 
after death, and after death the 
time is past. for performance to 
the promisee, and the stipulation 
amounts to a promise to convey to 
the promisee’s successor, which is 
void. 


§ 101. What is said of death must 
also be understood of loss of status. 


§ 102. Another cause of nullity is 
the want of correspondence between 
the question and answer ; if I stipu- 
late, for instance, for ten sestertia 
and you promise five, or if you meet 
my absolute stipulation by a condi- 
tional promise. 

§ 103. No valid stipulation can 
be made to convey to a person who 
has not power over the stipulator, 
whence the question has been 
mooted to what extent a stipulation 
for payment to the stipulator and 
& stranger is valid. My school hold 
that it is valid for the whole sum 
stipulated, and that the stipulator 
is entitled to the whole, just as if 
the stranger had not been men- 
tioned. The other school hold that 


mm. § 97-109.] DE INUTILIBUS STIPULATIONIBUS. 361 


mant, pro altera uero parte in- 
utilem esse stipulationem. 


$103 a. Alia causa est | DARI 
SPONDES | | ——- solidum deberi et 
me | solum etiam Titi|o —. 








§ 104. Praeterea inutilis est sti- 
pulatio, si ab elo stipuler qui iuri 
meo subiectus est, item si is a me 
stipuletur. (sed) seruus quidem 
et qui in mancipio est et filia fami- 
kas et quae in manu est non solum 
ipsi cuius iuri subiecti subiectaeue 
sunt, obligari non possunt, sed ne 
alii quidem ulli. 


$ 105. Mutum neque stipuleri 
neque promittere posse palam est. 
idem etiam in surdo receptum est; 
quia et is qui stipulatur, uerba 
promittentie, et qui promittit, uerba 
stipulantis exaudire debet. 

$ 106. Furiosus nullum negotium 
gerere potest, quia non intellegit 
quid agat. 

$107. Pupillus omne negotium 
recte gerit, «t tamen, sicubi tutoris 
auctoritas necessaria sit, adhibeatur 
(tutor), ueluti si ipse obligetur; 
nam alium sibi obligare etiam sine 
tutoris auctoritate potest. 

$ 108. Idem iuris est in feminis 
quae in tutela sunt. 

$ 109. Bed quod diximus de pu- 
pillo, utique de eo uerum est qui 
iam aliquem intellectum — babet. 
nam infans et qui infanti proximus 
est, non multum a furioso differt, 
quia huius aetatis pupilli nullum 
intellectum habent; sed in his pu- 
pilis propter utilitatem benignior 
juris interpretatio facta eet. 


he is only entitled to one moiety, 
and that the stipulation is of no 
effect as to the other. 

$ 103 a. It is a different case if 
you promise to convey something 
to me or Titius, for then the whole is 
due to me, and I also can sue on the 
stipulation though the debt may be 
discharged by payment to Titius. 

$ 104. No valid stipulation can 
be made between & person under 
power and the person to whom he 
is subject. A slave, a person in 
mancipation, a daughter and a wife 
subjected to the hand of a husband, 
can incur an obligation neither to 
the person in whose power or man- 
cipation they are, nor to any other 

rson. 

$ 105. The dumb cannot stipu- 
late or promise, nor can the deaf, 
for the promisee in stipulation must 
hear the answer, and the promisor 
must hear the question. 


$106. A lunatic cannot enter 
into any contract because he has 
no judgment of consequences. 

§ 107. A ward can enter into 
any contract provided that he has 
his guardian’s authority when ne- 
cessary, as it is for incurring an 
obligation, although not for im- 
posing an obligation. 

$ 108. The same rule applies to 
women who are wards. 

$109. This concession of legal 
capacity to wards is manifestly 
reasonable in respect of children 
approaching the age of twelve or 
fourteen; and children who have 
only just completed their seventh 
year, though resembling lunatics in 
want of intelligence, are permitted, 
with a view to their interests, to 
have the same capacity as those 
approaching twelve or fourteen. 


$97. A stipulation was inutilis, i.e. originally (ipso jure) null 
and void, which conferred no right on the promisee even though 


362 . DE OBLIGATIONIBUS. [urr. $$ 97-109. 


the promisor alleged no counter right (exceptio). When this was 
clear, the praetor would not permit the promisee to sue (actionem 
denegare), Dig. 45, 1, 27. 

Among the objects that could not be secured by stipulation, and 
still less by any Formless contract, are Dispositions under the code 
of Family law (the laws governing domestic relations) or the code 
of Succession. E.g. no promise of marriage (sponsalia) was legally 
binding— striking contrast to the rule of English law, Nor do 
we hear of any binding agreement to a future Emancipation, Adop- 
tion, or Árrogation ; or for the principal acte relating to the law 
of Succession, to the execution of a Will or to the aditio of an in- 
heritance. In all these solemn Dispositions the Roman legislator 
deemed it expedient that the disposer should have an entire free- 
dom of choice at the moment of making the Disposition. 

§ 98. This seems an appropriate place for the following remarks 
on the general nature of conditions. A Condition is an element 
of Title; it is a certain contingent occurrence or non-occurrence, 
performance or non-performance, by arbitrary appointment con- 
ferring on a certain person a certain night, or imposing on him 
a certain obligation. It may be defined as the middle term (B) 
of a syllogism of which the minor term (C) represents a person, 
and the major term (A) a right or obligation, and of which both 
the premisses are Contingent. It is the last feature that we shall 
first proceed to consider. 

The major premiss must be contingent; it must be an arbitrary 
determination that makes the right or obligation (A) depend on the 
given title (B); the nexus between the middle and major terms 
must be solely the will of the testator or contractors, not the will 
of the legislator; the title must not be in its own nature the Neces- 
sary presupposition of the right. E. g. in the following cases: the 
institution of a person as heir, sf he survive the testator, tf he accept 
the inheritance ; the bequest of a legacy, af the hetr accept the in- 
heritance; the promise of a dower, if the marriage is celebrated ; the 
seeming condition is required by the law, and its expression is 
superfluous: such an event, therefore, is not a genuine condition. 
Again, the nexus between the minor and middle terms may be 
either the will of the person entitled (conditio potestativa), Cod. 6, 
51, 7, or chance (conditio casualis); but one way or other the 
minor premiss must be contingent; the fulfilment of the condition 
must be neither Necessary nor Impossible: it must be a future and 





m. §§ 97-109.] CONDITIONS. 363 


uncertain contingency whether the title (B) shall be realised or 
fulfilled in respect of a given person (C). The condition, accord- 
ingly, must not be a past or present event, e.g. if Titius was consul 
last year, if Titius is now consul; such a fact is now certain and 
Necessary, and any disposition contingent thereon is really un- 
conditional. ) 

The effect of an Impossible condition is different in Contracts 
and Testamentary dispositions; it invalidates contract; whereas in 
a testament it is deemed unwritten (pro non scripto habetur), and 
the disposition is regarded as unconditional. This was the rule 
that finally prevailed, Dig. 85, 1, 1 § 8. ‘It has been finally 
decided that impossible conditions to testamentary dispositions are 
mere surplusage. This was the doctrine of the Sabinians, and was 
confirmed by Justinian, Inst. 2, 14, 10. Illegal and immoral con- 
ditions followed the same rule as impossible conditions. The 
question why Contracts and Wills were governed by different rules, 
which Gaius admits to be obscure, may receive some light from the 
following considerations. Testamentary dispositions in their nature 
are acts of liberality on the part of the testator. Even when he 
employs them as inducements to an illegal or immoral act, it is not 
quite certain that the refusal to perform the act would deprive the 
devisee of his liberality. At all events, the devisee is innocent of 
unlawful intention, and the same cannot be said of the contractor 
who is guilty of an agreement to violate the law. Accordingly, 
the law aids the devisee but not the contractor; and the rule, 
once established for immoral conditions, was extended to impossible 
conditions. 

On this point the French code agrees with the Roman law. 
In the Austrian code the Proculeian doctrine is followed : 1. e. tes- 
tamentary dispositions as well as contracts are invalidated by im- 
moral or impossible conditions. The Prussian code follows a middle 
course : impossible conditions invalidate a testamentary disposition ; 
immoral conditions are deemed unwritten and the disposition is 
construed as unconditional, 

A Condition was not annexable to all dispositions. It was an- 
nexable to all Testamentary dispositions: but among dispositions 
inter vivos the only ones to which it could, at least in the earlier 
jurisprudence, be annexed were Obligations. A Condition could 
not be annexed to an In jure cessio or judicial surrender: Nulla 
legis actio prodita est de futuro, Frag. Vat. 49. Nor to Manci- 





364 DE OBLIGATIONIBUS. [nr. $$ 97-109. 


patio, nor to Ácceptilatio, nor to Expensilatio (Literal Obligation) 
nor to Cognitoris datio. Sub conditione cognitor non recte datur, 
non magis quam mancipatur, aut acceptum vel expensum fertur, 
Frag. Vat. 829. Nor could it be annexed to magisterial Tutoris 
datio: Sub conditione a praesidibus provinciarum non posse dari 
tutorem placet, et si datus sit nullius esse momenti dationem, Dig. 
26, 1, 6, 1: nor to Tutoris auctoritas, Dig. 26, 8, 8: nor to heredi- 
tatis aditio, nor to servi optio: Actus legitimi qui non recipiunt 
diem vel conditionem, veluti mancipatio, aeceptilatio, hereditatis 
adilio, servi optio, datio tutoris, in totum vitiantur per temporis 
vel conditionis adjectionem, Dig. 50, 17, 77. 

Later jurisprudence admitted the annexation of conditions to 
the alienation of property by means of Tradition. Conditions are 
Suspensive or Resolutive. Tradition coupled with a Suspensive 
condition operates an immediate transfer of possession and a future 
transfer of ownership contingent on, and contemporaneous with, 
the fulfilment of the condition, p. 202. "Tradition, coupled with 
a Resolutory condition, operates two transfers of ownership: an 
immediate transfer of ownership and a subsequent retransfer of 
ownership, contingent on, and contemporaneous with, the fulfilment 
of the condition. The retransfer of dominion follows without any 
retradition or reconveyance by the interim proprietor; and the 
remedy of the original proprietor is not condictio, implying the 
necessity of reconveyance, but vindicatio, implying that he is 
already reinvested with dominion. The justa causa or disposition 
which accompanies the tradition and determines the transfer of 
property (2 § 20), also limits the duration of the property so trans- 
ferred. Such at least is the doctrine of the majority of jurists : 
others hold that the fulfilment of the resolutive condition only 
imposes on the transferree a personal obligation of reconveyance. 

Conditions annexed to contracts have the following difference 
from conditions annexed to testamentary dispositions and dis- 
positions translative of dominion. Conditions annexed to contract 
are retroactive: the obligation determined by their fulfilment 
relates backward and dates from the date of the contract. Con- 
ditions annexed to legacy or to alienation are not retroactive: the 
obligation or ownership thereby conferred only dates from the 
fulfilment of the condition. 

We have seen that conditions were excluded from Expensilatio 
or Literal contract: it was their admissibility in Stipulatio that 





i. § 97-109.] PAYMENT TO A THIRD PERSON. 365 


made the latter, unlike Expensilatio, a generic or universal form 
of contract: a contract equally applicable whatever the object that 
the contractors desired to secure. Primitive jurisprudence only 
recognized stipulations whose object was a datio or conveyance 
of property ; not stipulations whose object was a factio or non- 
factio, some other kind of performance or forbearance. But when 
facere or non facere was allowed to form the Condition of an obli- 
gation whose object was & dare, that is, when the payment of 
& penal sum could be made contingent on the non-performance 
or performance of a certain act, it became possible to stipulate, 
virtually or indirectly at least, for factio or non-factio as well as 
for datio. Savigny, § 116, Ihering, Vangerow, § 98. 

§ 100. As to the rights conferred or obligations imposed by 
a contract on third persons not parties to the contract Paulus lays 
down the following principle : Quaecunque gerimus, cum ex nostro 
contractu originem trahunt, nisi ex nostra persona obligationis 
initium sumant, inanem actum nostrum efficiunt: et ideo neque 
stipulari neque emere vendere contrahere, ut alter suo nomine recte 
agat, possumus, Dig. 44, 7, 11, i.e. in every contract where the 
apparent contractors are the real contractors, i.e. are not agents 
but principals, the right created by the contract must primarily 
vest, if the contract is to be valid, in the promisee himself; and 
the obligation in the promisor himself. This rule is evidently 
not violated if the promisee associates to himself his heir, i.e. 
contracts for some right to himself and heir: Suae personae ad- 
jungere quis heredis personam potest, Dig. 45, 1, 38, 14: but it is 
violated if the promisee contracts for some right to vest exclusively 
in his heir, or, as expressed in this paragraph, for some performance 
post mortem suam. Such contracts aecordingly were void, whether 
they belonged to the civil or the gentile code, $ 158. This led to 
the introduction of an Adstipulator when a person wished to sti- 
pulate something exclusively for the benefit of his heir, $ 117. 
When Justinian abrogated the rule and ordained that an act could 
be Contracted to be performed either before or after the death of 
either of the contractors, Cod. 4, 11, 1, the Adstipulator became 
unnecessary. | 

The rule of Paulus would make a promise of payment to the 
promisee and a stranger void as to the latter, $ 103. 

'The same rule applied to the passive obligation a contract imposed : 
the debtor created by a contract could not be in the first instance 


366 DE OBLIGATIONIBUS. fanz. $$ 97-109. 


the heir of the promisor, $ 158. One intelligible motive for 
prohibiting obligations from taking effect on the death of the 
promisor would be to prevent evasions of the testamentary laws 
restricting the powers of testation. A testator who wished to 
leave a legacy to a person who could not take under a will from 
want either of Capacitas or of passive Testamentifactio, or a legacy 
beyond the amount permitted by the lex Falcidia or some other 
law, would enter into a Stipulation, binding his heir to pay a 
certain sum after the death of the promisor. 'The promisee then 
eould recover this sum not as legatee but as creditor under the 
stipulation. That such evasions were in fact attempted appears 
from Dig. 22,3,27. Ihering. Is this opening of a door to fraudu- 
lent evasions the evil that Gaius intends to express by ‘ Inelegance,’ 
a somewhat unintelligible term? Justinian, however, abolished 
the distinctions recorded in this paragraph, and allowed the sti- 
pulation of an act to be performed either for the heir of the pro- 
misee, or by the heir of the promisor, Inst. 3, 19, 13. 

§ 103. A slave or filiusfamilias who stipulated a payment to 
himself acquired an obligation for the master or paterfamilias. He 
could also stipulate directly a payment to the master or parent. 
Except in these relations, it was the rule that a man could not stipu- 
late for payment to a third person. Payment, however, to a third 
party might be secured by a penal clause, stipulating, in default 
of performance, payment of a penal sum to the promisee, Inst. 
3, 19, 19. ! 

The rule of the Civil law that a Formal contract could only be 
concluded between principale—between persons covenanting im 
their own names, was an impediment in the way of commerce 
which was met, as we have already stated, by a double use of a 
Consensual contract, which will presently be examined, the contract 
of Agency (mandatum). An Agent or mandatary stipulated in his 
own name with a third person, and then ceded his right of action 
to his principal; that is, made his principal his mandatary: the 
principal then sued and recovered on the stipulation as Cessionary 
of the action, that i8, as mandatary of his mandatary. In the latest 
period the actual Cession of the action was unnecessary: the praetor 
allowed the principal to sue by an actio Utilis, i.e. either an action 
whose formula contained a Fiction, with whose precise nature we 
are unacquainted, but perhaps to the effect that the principal was 
the universal successor of the agent, or an action with a formula in 


ur.$$97-109. PAYMENT TO A THIRD PERSON. 367 


factum concepta. In respect of Formless contracts, or contracts 
governed by Jus Gentium, the institute of Agency was more com- 
pletely recognized. lf an Agent merely acted as emissary (nuncius) 
and instrument (minister) of his principal, that is, contracted in the 
name of his principal, the principal aequired an immediate right 
against the third contractor and incurred a direct obligation to him: 
he could sue him or be sued by him in an actio Directa—he was not 
driven to an actio Utilis or Fictitia. In this respect the distinction 
between Formal and Formless contracts may be thus expressed : in 
Formal contracts the Civil law requires both elements of the Title 
or Disposition, the essential element (intention to create an obliga- 
tion) and the evidentiary element (the declaratory question or 
answer) to be acts of the same person: in Formless contracts Gen- 
tile law allows these elements to be sundered ; allows the essential 
part (intention) to be the act of one person, the Principal, and the 
declaratory part (the formless external manifestation of this inten- 
tion) to be the act of another person, the Agent. See § 162, comm. 

If then it was desired to contract for payment to a third person, it 
was only necessary that the contractor should not attempt to do as 
principal what he could only do as agent, or to do without Cession 
what could only be done by means of Cession. Even if he neglected 
these precautions it did not inevitably follow that his contract was 
inefficacious. Paulus, indeed, Dig. 44. 7, 11,]ays down the principle 
which we have already, $100, noticed : * Every disposition in which 
a person contracts as principal but attempts to entitle a third 
person to sue as principal (i.e. attempts to invest a third person 
with the nights of an immediate creditor) is invalid: and neither 
by formal contract of stipulation, nor by formless contract of 
purchase and sale, nor by any other contract in which I am prin- 
cipal can I invest a third person with a right to sue in his own 
name.’ But this rule was not so important as at first sight it 
might appear: for if the third person by subsequent ratification 
made the contractor his negotiorum gestor, i.e. his representative 
or agent (procurator) the contract became valid. Savigny, Obli. 
gation, $ 59. We have already mentioned, § 100, that in Justi- 
^ mian's legislation a contractor could contract for a payment to or 
by a third person, when that person was his own successor. 

The controversy between the Sabinians and Proculeians is 
decided in favour of the latter by Justinian, who enacts that a 
stipulation for payment of a sum to the promisee and a stranger 


368 DE OBLIGATIONIBUS. [1n. $$ 97-109. 


entitles the promisee to payment of half the sum and is void as 
to the remainder, Inst. 8, 19, 4. In a Formless contract the 
Sabinian doctrine still prevails, Dig. 18, 1, 64. 

$109. The age of puberty, as we have seen, was 14 for males, 
12 for females. Before this period the child was called impubes: 
up to the age of 7 he was called infans. In the interval between 
7 and 14 he was described either as infantiae proximus or as pu- 
bertati proximus. According to some commentators the interval 
was equally divided between these appellations, so that from 7 to 
10} a boy was infantiae proximus, and from 10} to 14 pubertati 
proximus. According to Savigny these names only covered the space 
of & year measured from each limit, so that from 7 to 8 a child 
was infanti proximus, from 18 to 14 puberi proximus, and from 8 
to 18 without any distinctive appellation. Cf. 1, 142, comm. 

The principal peculiarity that results from the nature of verbal 
and literal contracts and distinguishes them from other conventions 
is, that other conventions are not legally valid unless the promisor 
be shown to get a quid pro quo, that is, unless an adequate con- 
sideration be proved : whereas verbal and literal contracte, securing 
by the solemnity of their formalities due deliberation on the part 
of the contractors, are valid in favour of the promisee without 
proof of consideration. 

Although, however, the want of consideration did not absolutely 

invalidate a stipulation, yet it constituted a counterpoising right of 
the promisor which might be pleaded by the exceptio doli mali or 
non numeratae pecuniae. The exception of dolus malus was allowed 
by Marcus Aurelius (4. D. 169—176) to be pleaded in all actions of 
civil law. 
. 1f instead of generally alleging fraud (Si in ea re nihil dolo 
malo Auli Agerii factum est neque fit), the plea alleged the par- 
ticular fact of non-payment (exceptio in factum composita), it was 
called exceptio pecuniae non numeratae. Compare Gaius, 4 $ 116 : 
Si stipulatus sim a te pecuniam, tanquam credendi causa numera- 
turus, nec numeraverim . ... placet per exceptionem doli mali te 
defendi debere, with Just. Inst. 4, 18, 2: Si quis, quasi credendi 
causa, pecuniam stipulatus fuerit, neque numeraverit . .. . placet 
per exceptionem pecuniae non numeratae te defendi debere. 

Àn important peculiarity of these exceptions was that the burden 


of proof was not, as in other exceptions, on the defendant, but on 
the plaintiff, 


m. $$ 110-127.] ADSTIPULATIO. 369 


It is clear that when these rules were established the nature of 
verbal and literal contracts was deeply modified: Formal con- 
tracts were abolished, so far as the rules extended, or transformed 
into real contracts, the obligation of the promisor depending on 
the performance of the promisee (re), that is, on the execution by 
the promisee of his part of the consideration, not on the solemnity 
of the spoken words (verbis) or written document (literis). 

This transformation of a verbal or literal into a real contract was, 
however, confined to contracts contemplating & loan of money. 
Moreover, by a constitution of Marcus Aurelius, if the stipulation 
was accompanied by a written document, the exception could only 
be pleaded within five years from the date of the contract, which 
delay was reduced to two years by Justinian, Inst. 8, 21, after which 
interval the cautio was accepted as incontrovertible proof that the 
money had been advanced. After this interval, accordingly, Stipu- 
lation, armed with a written document, resumed, or rather for the 
first time assumed, its proper character of a Formal contract. 

If no written document accompanied the Stipulation, no length 
of time barred the defendant from pleading the exceptio Non 
numeratae pecuniae. 

If the plaintiff, instead of suing on the Stipulatio, sued on an 
alleged loan (Mutuum), the defence of the defendant, though sub- 
stantially the same, viz. that he had never received the money, 
being a mere contradiction of the intentio, would not appear in the 
formula in the shape of an exceptio. (For the circumstances under 
which a defence took the form of Exceptio, see 4 § 115.) 

But the usual practice was to associate a Loan with a Stipulatio, 
and then the lender brought his action not on the Loan but on 
the Stipulatio. Hence the question of the existence or non-exist- 
ence of a Loan was usually litigated not in the form of an action 
brought on a Loan, but in the form of an Exceptio non numeratae 
pecuniae in an action brought on a Stipulation. 


ADSTIPULATIO ET INTERCESSIO. 


§ 110. Possumus tamen ad id § 110. Although another person 
quod stipulamur, alium adhibere cannot stipulate for us, yet in our 
qui idem stipuletur; quem uulgo stipulations we can associate with 
alstipulatorem uocamus. ourselves another person who stipu- 

lates for the same performance, and 
is called an adstipulator. 

$111. £t huic proinde actio con- $ 111. He can sue as well as the 


Bb 


370 


petit proindeque ei recte soluitur 
ac nobis; sed quidquid consecutus 
erii, mandati iudicio nobis resti- 
tuere cogetur. 


$112. Ceterum potest etiam alzis 
uerbis uti adstipulator quam quibus 
nos usi sumus. itaque si uerbi 
gratia ego ita stipulatus sim DARI 
BPONDES!, ille sic adstipulari potest 
IDEM FIDE TVA PROMITTIS? uel 
IDEM FIDEIVBES? uel contra. 


$113. Item minus adstipulari 
potest, plus non potest. itaque si 
ego sestertia X stipulatus s¢m, ille 
sestertia V stipulari potest; contra 
uero plus non potest. item si ego 
pure stipulatus sim, ille sub con- 
dicione stipulari potest; contra 
uero non potest. non solum autem 
in quantitate sed etiam in tempore 
minus et plus intellegitur; plus est 
enim statim aliquid dare, minus est 

st tempus dare. 

$ 114. In hoc autem iure quae- 
dam singulari iure obseruantur. 
nam adstipulatoris heres non habet 
actionem. item seruus adstipu- 
lando nihil agit, quamuis ex ceteris 
omnibus causis stipulatione domino 
adquirat. idem de eo qui in man- 
cipio est, magis placuit; nam et 
is serui loco est. is autem qui in 
potestate patris est, agit aliquid, 
sed parenti non adquirit, quamuis 
ex omnibus ceteris causis stipulando 
ei adquirat. ac ne ipsi quidem 
aliter actio conpetit, quam si sine 
capitis deminutione exierit de po- 
testate parentis, ueluti morte eius 
aut quod ipse flamen Dialis inau- 
guratus est. eadem de filia familias 
et quae in manu est dicta intelle- 
gemus. 

$ 115. Pro eo quoque qui pro- 
mittit solent alà obligari; quorum 
alios sponsores, alios fidepromis- 
sores, alios fideiussores appellamus. 


DE OBLIGATIONIBUS. 


[ur. $$ 110—127. 


stipulator, and payment to him dis- 
charges the debtor as well as pay- 
ment to the stipulator, but whatever 
he recovers, the action of mandate: 
compels him to hand over to the 
stipulator. 

§ 112. The adstipulator need not 
employ the same terms as the sti- 
pulator; if the one says, ‘ Art thou 
sponsor for the conveyance?’ the 
adstipulator may say, ‘ Dost thou 
for the same pledge thy credit?’ 
or, ‘Dost thou for the same bid 
me trust thee?’ or vice versa. 

§ 113. He may contract for less 
than the stipulator, but not for 
more. Thus, if I stipulate for ten 
sestertia he may stipulate for five, 
or if I stipulate absolutely he may 
stipulate conditionally, but not vice 
versa. More and less 1s to be under- 
stood of time as well as of quantity, 
immediate payment being regarded 
as more, and future payment as 
less. 


$ 114. In this institution there 
are some exceptional rules. The 
successor of the adstipulator cannot 
sue; a slave cannot be adstipulator, 
though in any other circumstance 
his stipulation acquires a right for 
his master; a person in domestic 
bondage cannot be adstipulator, be- 
cause he is likened to a slave; a son 
in the power of his father can be 
adstipulator, but does not acquire 
a right for his father, as in all other 
stipulations, and he himeelf has no 
right of action until, without loss 
of status, he ceases to be subject to 
his father, by his father’s death, for 
instance, or by being inaugurated 
priest of Jupiter. The same is true 
of a filiafamilias and a wife in the 
power of her husband. 

§ 115. For the promisor, simi- 
larly, other persons are bound, who 
are called sponsors or fidepromis- 
sors or fidejussors. 





r1. $$ 110-127.] 


$ 116. Sponsor ita interrogatur 
IDEM DARI SPONDES? fidepromissor 
(ita) IDEM FIDEPROMITTIS? fide- 
lassor ita IDEM FIDE TVA ESSE 
IVBES? uidebimus [de his] autem, 
quo nomine possint proprie appel- 
lari qui ita interrogantur IDEM 
DABIS] IDEM PROMITTIS? IDEM 
FACIES 1 


$ 117. Sponsores quidem et fide- 
promissores et fideiussores saepe 
solemus accipere, dum curamus ut 
diligentius nobis cautum sit; ad- 
stipulatorem uero fere tunc solum 
adhibemus, cum ita stipulamur, ut 
aliquid post mortem nostram detur. 
(——) stipulando nihil agimus, 
adhibetur adstipulator, ut is post 
mortem nostram agat; qui si quid 
fuerit consecutus, de restituendo eo 
mandati iudicio heredi [meo] te- 
netur. 

$ 118. Sponsoris uero et fidepro- 
missoris similis condicio (est), 
fideiussoris ualde dissimilis. 


$119. Nam ill quidem nullis 
obligationibus accedere possunt nisi 
uerborum, (quamuis interdum ipse 
qui promiserit, non fuerit obligatus, 
uelut si mulier aut pupillus sine 
tutoris auctoritate aut quilibet post 
mortem suam dari promiserit. at 
illud quaeritur, $1 seruus aut pere- 
grinus spoponderit, an pro eo spon- 
eor aué fidepromissor obligetur). 


$ 119a. Fideiussor uero omnibus 
obligationibus, id est siue re siue 
uerbis siue litteris siue consensu 
contractae fuerint obligationes, adici 
potest. ac ne illud quidem interest, 
utrum ciuilis an naturalis obligatio 
sit cui adiciatur ; adeo quidem, ut 
pro seruo quoque obligetur, siue 


INTERCESSIO. 371 


$ 116. A sponsor is thus inter-' 
rogated: ‘Art thou for the same 
payment sponsor?’ a fidepromissor 
thus: ‘ Dost thou forthe same pledge 
thy credit?’ a fidejussor thus: * Dost: 
thou the same guarantee?’ We 
shall have to consider the question 
what is the proper name for those 
who are thus interrogated: ‘ Wilt 
thou the same convey? Dost thou 
the same promise? Wilt thou the 
same perform 1' 

$ 117. Sponsors and fidepromis- 
sors are often employed for addi- 
tional security; an adstipulator is 
only employed to secure payment 
after our death. Our own stipula- 
tion for this is void, and therefore 
we associate with ourselves an ad- 
stipulator, who sues after our death, 
and is compelled by an action of 
mandate to hand over to our suc- 
cessor whatever he recovers. 


$118. The rules which govern 
the sponsor and fidepromissor are 
similar, and very unlike those which 
govern the fidejussor. 

$ 119. The former are adjuncts 
of none but verbal contracts, and 
are sometimes effective when the 
principal promisor is not validly 
bound, as, for instance, when a 
woman or ward contracts without 
the guardian’s authority, or a per- 
s0n promises a payment after his 
death. It is a moot question when 
a slave or alien promises by the 
term spondeo, whether his sponsor 
or fidepromissor is effectively 
bound. 

§119a. A fidejussor may ac- 
company any obligations, whether 
real, verbal, literal, or consensual, 
and whether civil or natural. 
Accordingly, he may be bound for 
the obligation of a slave either to 
a stranger or to his master. 


Bb 2 





372 


extraneus sit qui a seruo fideiusso- 
rem accipiat, siue ipse dominus in 
id quod sibi debeatur. 

$120. Praeterea sponsoris et fide- 
promissoris heres non tenetur, nisi 
si de peregrino fidepromissore quae- 
ramus, et alio iure ciuitas eius 
utatur.  fideiussoris autem etiam 
heres tenetur. 

$ 121. Item sponsor et fidepro- 
missor lege Furia biennio liberan- 
tur, et quofquoé erunt numero eo 
tempore quo pecunia peti potest, 
in tot partes deducitur inter eos 
obligatio et singuli (iz) uiriles 
partes obligantur. fideiussores uero 
perpetuo tenentur, et quotquot erunt 
numero, singuli in solidum | obligan- 
tur. itaque liberum est creditori 
a quo uei; solidum petere. sed 
nunc ex epistula diui Hadrian: con- 
pellitur creditor a singulis qui modo 
soluendo sint, partes petere. eo 
igitur distat haec epistula & lege 
Furia, quod si quis ex sponsoribus 
aut fidepromissoribus soluendo non 
sit, hoc onus ad (ceteros mon per- 
tinet ; sed ex fideiussoribus etsi unus 
tantum soluendo sit, ad hunc onus) 
ceterorum quoque pertinet. 


$ 121a. Sed cum lex Furia tan- 
tum in Italia locum habeat, euenit 
ut in ceterts prouinciis sponsores 
quoque et fidepromissores proinde 
ac fideiussores perpetuo teneantur 
et singuli in solidem obligentur, 
nisi ex epistula diui Hadriani hi 
quoque adiuuentwr in parte. 

$ 122. Praeterea inter sponsores 
et fidepromissores lex Appuleia 
quandam societatem introduxit. nam 
si quis horum plus sua portione 
soluerit, de eo quod amplius de- 
derit, aduersus ceteros actiones con- 
stituit. quae lex ante legem Furiam 
lata est, quo tempore in solidum 
obligabantur. unde quaeritur an 


DE OBLIGATIONIBUS. 


[rrr. $$ 110-127. 


§ 120. Again, no successor of the 
sponsor or fidepromissor is bound, 
except the successor of an alien fide- 
promissor in whose municipality 
such a rule prevails; but the fide- 
jussor’s successor is always bound. 

§ 121. Again, a sponsor and fide- 
promissor, by the lex Furia, at the 
end of two years are discharged of 
obligation, and the total obligation 
is divided into as many parts as 
there are sponsors or fidepromissors 
at the time when the payment is 
due; and each is only liable for a 
single part. Fidejussors are liable 
for ever, and, however many there 
are, each is liable for the whole 
amount, and the creditor may sue 
whichever he chooses for the whole. 
But now by the letter of Hadrian 
he is compellable to sue only for an 
aliquot part, determined by the 
number of the solvent. Herein the 
letter of Hadrian differs from the 
lex Furia, for the insolvency of one 
sponsor or fidepromissor does not 
increase the liability of the re- 
mainder, whereas if only one of 
several fidejussors is solvent, he has 
to bear the whole burden. 

$121a. As the lex Furia only 
applies to Italy, in the provinces, 
sponsors and fidepromissors, like 
fidejussors, are liable for ever, and 
each would be liable for the whole 
amount, if they were not held to be 
relieved to some extent by the letter 
of Hadrian. 

§ 122. Moreover, between spon- 
sors and fidepromissors the lex Ap- 
puleia introduced a sort of part- 
nership, for any one of them who 
has paid more than his share can 
recover the excess from the others. 
The lex Appuleia was passed before 
the lex Furia, when each sponsor 
and fidepromissor was liable for the 


n. $$ 110-127.] 


post legem Furiam adhuc legis Ap- 
puleiae beneficium supersit. et uti- 
que extra Italiam superest. nam 
lex quidem Furia tantum in Ital:a 
ualet, Appuleia uero etiam in cete- 
ris prouinciis. sed an etium (in) 
Italia beneficium legis Appuleiae 
supersit, ualde quaeritur. ad _jfide- 
tussores autem lex Appuleia non 
pertinet. itaque si creditor ab uno 
totum consecutus fuerit, huius 80- 
lius detrimentum erit, scilicet si is 
pro quo fideiussit, soluendo non sit. 
sed ut ex supra dictis apparet, is 
@ quo creditor totum petit, poterit 
ex epistula diui Hadriani deside- 
rare, ut pro parte in se detur actio. 


$ 123. Praeterea lege Cicereia 
cautum est, ut is qui sponsores aut 
fidepromissores accipiat, praedicat 
palam et declaret, et de qua re satis 
accipiat et quot sponsores aut fide- 
promissores in eam obligationem 
accepturus sit ; et nisi praedixerit, 
permittitur sponsoribus et fide- 
promissoribus intra diem XXX prae- 
iudicium postulare, quo quaeratur 
an ex ea lege praedictum sit; et si 
iudicatum fuerit praedictum non 
esse, liberantur. qua lege fide- 
iussorwm mentio nulla fit. sed in 
usu est etiam si fideiussores accipi- 
amus, praedicere. 


$ 124. Sed beneficium legis Cor- 
neliae omnibus commune est. qua 
lege idem pro eodem apud eundem 
eodem anno uetatur in amplio- 
rem summam obligar creditae 
pecuniae quam in XX milia. et 
quamuis sponsores uel fidepro- 
missores in ampliorem pecuniam, 
ueluti si sestertium € milium (se 


INTERCESSIO. 


373 


whole amount; and accordingly it 
is questioned whether, since the lex 
Furia was passed, they still enjoy 
the benefit of the lex Appuleia. 
In the provinces undoubtedly they 
do; for the lex Furia is not in 
force beyond Italy, and the lex 
Appuleia is; but whether Italy 
continues to be under its domin- 
ion, is much disputed. Fide- 
jussors are not governed by the 
lex Appuleia; accordingly, if one 
fidejussor pay the whole amount, 
he alone suffers by the insolvency 
of the principal; but it is his 
own fault; for, as was said above, 
a fidejussor sued for the whole 
amount is entitled by the letter 
of Hadrian to require the claim 
to be reduced to his ratable 
portion. 

§ 123. Further, the lex Cicereia 
provides that a creditor who obtains 
the guaranty of sponsors and fide- 
promissors shall previously an- 
nounce and declare to them the 
amount of the debt to be guaran- 
teed and the number of sponsors 
or fidepromissors by whom it is to 
be guaranteed ; and in the absence 
of such declaration the sponsors or 
fidepromissors are permitted within 
thirty days to demand a trial of 
the issue, whether the requisite 
declaration was made; and on 
judgment that it was not made 
are discharged of liability. The 
law makes no mention of fide- 
jussors, but it is usual in a 
guaranty by fidejussors to make a 
similar declaration. 

§ 124. The benefit of the lex 
Cornelia is available for all sureties, 
forbidding the same person to be 
surety for the same debtor to the 
same creditor in the same year for 
more than twenty thousand sester- 
ces of ascertained debt; and if a 
sponsor or fidepromissor guarantees 
a larger sum, for instance, one hun- 


374 


obligauerint, tamen dumtaxat XX 
tenentur). pecuniam autem credi- 
tam dicimus non solum eam quam 
credendi causa damus, sed omnein 
quam tum cum contrahitur obli- 
gatio, certum est debitum iri, id 
est (quae) sine ulla condicione de- 
ducitur in obligationem. itaque et 
ea pecunia quam in diem certum 
dari stipulamur, eodem numero est, 
quia certum est eam debitum iri, 
licet post tempus petatur. appella- 
tione autem pecuniae omnes res in 
ea lege significantur. itaque si 
«inum uel frumentum aut si fun- 
dum uel hominem  stipulemur, 
haec lex obseruanda est. 

§ 125. Ex quibusdam tamen 
causis permittit ea lex in infinitum 
satis accipere, ueluti si dotis nomine, 
uel eius quod ex testamento tibi 
debeatur, aut iussu iudicis satis 
accipiatur. et adhuc lege (Julia 
de) uicesima hereditatium cauetur, 
ut ad eas satisdationes quae ex ea 
lege proponuntur, lex Cornelia non 
pertineat. 


$126. In eo quoque iure par 
condicio est omnium, sponsorum, 


fidepromissorum, fideiussorum, quod : 


ita obligari non possunt, ut plus 
debeant quam debet is pro quo 
obligantur. atex diuerso ut minus 
debeant, obligari possunt, sicut in 
adstipulatoris persona diximus. 
nam ut adstipulatoris ita et horum 
obligatio accessio ,est principalis 
obligationis, nec plus in accessione 
esse potest quam in principali re. 

$ 127. In eo quoque par omnium 
causa est, quod si quid pro reo 
soluerint, eius reciperandi causa 
habent cum eo mandati iudicium, 
et hoc amplius sponsores ex lege 
Publilia propriam habent actionem 
in duplum, quae appellatur depensi. 


DE OBLIGATIONIBUS. 


(xr. $$ 110-127. 


dred thousand sesterces, he can only 
be condemned in twenty thousand 
sesterces. Ascertained debt includes, 
besides & present loan, all money 
which at the time of suretyship is 
certain to be due, that is, which de- 
pends on no eontingency. Aceord- 
ingly,itineludes money stipulated to 
be paid on a future day; for here the 
creditor hasa vested right to a future 
payment. Money in thislawincludes 
everything, so that, if we stipulate 
for the conveyance of wine, or corn, 
or land, or a slave, the lex Cornelia 
applies. 


§ 125. In some circumstances, 
however, the law permits a surety 
to be bound for anindefinite amount, 
as security for dower, for instance, 
or for a legacy, or by judicial order. 
Also the lex Julia imposing a daty 
of one twentieth on testamentary 
successions provides that the secu- 
rities therein required shall be 
excepted from the scope of the lex 
Cornelia. 

§ 126. The rights of sponsors, 
fidepromissors, and fidejussors are 
also equal in respect of the rule that 
they cannot be bound for more 
than their principal. They may, 
however, be bound for less, just as 
the adstipulator may stipulate for 
less. For their obligation, like that 
of the adstipulator, is an accessory 
of the principal obligation, and the 
accessory cannot be greater than 
the principal. 

§ 127. They further resemble in 
this, that whoever pays for the 
principal can recover the amount 
from him by action of mandate, 
Sponsors by the lex Publilia have an 
additional remedy, being able, un- 
less reimbursed in six months, to 
recover twice the sum advanced by 
the action on money paid by a 
sponsor, 


m. $$ 110-127.] CORREALITY. 375 


$ 110. At the corresponding point of his Institutes (8, 16) 
Justinian introduces the mention of CorREALITyY (duo rei debendi, 
duo rei eredendi), and it may be expedient to examine the nature of 
Correality before we embark on the consideration of the various 
forms of Guaranty. 

Correality, the multiplication of the creditors (plures rei credendi) 
or debtors (plures rei debendi) in a single obligation without a 
corresponding division of the Object of the right or obligation, was 
an institution of Roman law in favour of creditors ; whereby, ex- 
ceptionally and usually in virtue of a special agreement, each 
ereditor was severally entitled to recover the whole (solidum) 
object of the obligation from a common debtor, or each debtor was 
severally liable to pay the whole object of the obligation to a 
common creditor. "The ordinary rule, to which Correality forms an 
exception, 1s that when there are many creditors or many debtors 
in an obligation, the Object of the obligation is correspondingly 
divided ; so that each creditor is only entitled to recover a pro- 
portional fraction of the advantage and each debtor is only bound 
to bear a proportional fraction of the burden. In Correality each 
creditor is severally entitled to receive, and each debtor is severally 
bound to discharge, the whole Object of the obligation. By the 
ordinary rule, the creditors would be only jointly entitled to receive 
the whole object; and this the debtors would be only jointly bound 
to discharge; each creditor would be severally entitled to receive 
only a ratable part of the Object of the obligation, and a ratable 
part of the Object is all that each debtor would be severally bound 
to discharge. 

Correality may onginate in various modes : 

(2) Contract, whether Formal or Formless, Dig. 45, 2, 9, in which 
there are several promisors or several promisees. The usual origin 
of Correality was Verbal contract or Stipulation. 

(b) Testament: e.g. when a testator charges several successors 
alternatively with the payment of a legacy. 

(c) Co-ownership: e.g. when the co-proprietors of a slave are 
liable for a noxal action for some mischief that he has com- 
mitted. 

(d) Potestas patria, or dominica, or Mandatum, when the su- 
perior (father or master or principal) is liable to an actio adjectitiae 
qualitatis (actio de peculio, de in rem verso, quod jussu, institoria, 
exercitoria, 4 § 69) for the debt of the inferior (son, or slave, or 


376 DE OBLIGATIONIBUS. [rm $$ 110-127. 


agent). There is Correality between the inferior and superior, and 
the creditor can elect which he will sue. The Correality of the 
inferior and superior is here symbolized in the intentio or decla- 
ration of the plaintiff, which is identical in form whether the suit is 
brought against the inferior or the superior. 

Correality not only as denoting total or integral liability on the 
part of the debtor, and total or integral claim on the part of the 
creditor, furnishes a contrast to partial or fractional (in partem, pro 
rata) liability or claim ; but must also be distinguished from another 
relation of co-debtors and co-creditors to which it is much more 
nearly akin, namely SorrpARITY. Correality and Solidarity agree 
in this, that in both of them every creditor is severally entitled to 
receive the whole object of the active obligation, and every debtor 
is bound to discharge the whole object of the passive obligation : 
but differ in this, that whereas Correality implies the unity or 
identity of the obligation by which the co-creditors are entitled or 
the co-debtors are bound ; Solidarity implies that they are entitled 
or bound by a plurality or diversity of obligations. 

Solidarity originates in various modes : 

(a) Common delict, when several co-delinquents incur a liability 
to indemnification. 

(6) Co-guardianship, when one of the co-guardians has injured 
the ward from negligence. 

(c) Contract in which there are several promisors but no pactum 
adjectum to create Correality; e.g. where there are several 
borrowers, hirers, agente, depositaries. 

(d) Guaranty by the form of mandate called Mandatum qualifi- 
eatum; or by the form of Constitutum called Constitutum debiti 
alieni. 

Both Correality and Solidarity, as implying an integral but 
alternative obligation, lie in the mean between two extremes: on 
the one side, divided or partial (pro rata) liability ; and on the other 
side, the multiple or cumulative liability, generated by delicts that 
give rise to bilaterally penal suits (4 $ 6). E.g. if several persons 
combine to commit a theft they are all severally debtors for the 
whole penalty, and payment by one does not discharge his fellows : 
or if a person is guilty of an outrage (injuria) which wounds the 
honour of several, they are all creditors for the penalty, and re- 
eovery by one does not extinguish the claims of the rest, 8 $ 221. 
Where the actions on delict are purely indemnificatory, or only 





n1. $$ 110-127. ] SOLIDARITY. 377 


unilaterally penal, as the actions brought on Metus, Dolus, Noxa, 
Vis, there, as we have already stated, the relation of Solidarity 
subsists between the co-delinquents, and satisfaction by one ex- 
tinguishes the obligation of the rest. 

The differences between Correality and Solidarity are principally 
two: 

I. In Correality the mght of action against the remaining co- 
debtors or by the remaining co-creditors was extinguished by the 
institution of a suit (litis contestatio) against or by one, whatever 
the result of the suit: in Solidarity the right of action was only 
extinguished by complete payment or satisfaction (solutio). Electo 
reo principali fidejussor vel heres ejus liberatur: non idem in 
mandatoribus observatur, Paulus 2, 17, 16, ‘Election to sue the 
principal debtor discharges a Correal surety or his heir, but not a 
solidary surety.' 

It was possible to avoid the consumption or extinction of the 
right of action against the surety that was operated by suing the 
principal by so shaping the formula of fidejussio as not to produce 
Correality, Dig. 45, 1, 116. But at a later period the whole 
principle of process-consumption (extinction of right to sue by litis 
contestatio) was tacitly abandoned: and Justinian expressly enacted 
that in Correality as well as in Solidarity only actual satisfaction 
of a claim should operate a consumption of the right of action. 
Justinian’s ordinance is introduced into the Digest by means 
of a bold interpolation: Cum utro velit Seius aget, ut, si cum 
uno actum sit e£ solutum, alter liberetur. Pomponius, Dig. 80, 
1, 8, 1. 

2. A second difference between Correality and Solidarity consists 
in the fact that in Solidarity the guarantor who pays the whole has 
regressus against his co-guarantors, that is to say, has & power 
of recovering from them contribution of their share of the debt: 
whereas the Correal debtor who pays has no regressus or right to 
contribution. (I have here followed Vangerow : Savigny attempts 
to prove, but apparently without success, that regressus is an 
incident of Correality.) Where, however, the Solidarity is the effect 
of co-delinquency (No. a. above) the delinquent who pays has no 
regressus. 

After this preliminary consideration of the nature of Correality 
we are in a position to examine the nature of Guaranty or Surety- 
ship, and to fix the relation of fidejussio, one of the latest develop- 


378 DE OBLIGATIONIBUS. [ur. $$ 1107127. 


ments of Suretyship, to other cognate institutions of Roman 
jurisprudence. 

Fidejussio is a species of INTERCESSIO; and accordingly the above- 
mentioned object requires us to examine the nature and subdivisions 
of Intercessio. 

Intercession is the assumption of liability for the debt of another 
person by negotiation or contract with his creditor. For instance, 
when a person is hesitating whether he shall accept a succession 
because he has doubts whether it is solvent, that is, whether the 
assets exceed the liabilities, to induce him to accept it by a promise 
of indemnification, is not mtercession, because here there is no con- 
tract with a creditor: but if the ground of his hesitation is a 
suspicion that the debtors to the inheritance are insolvent, to induce 
him to accept the inheritance by a promise to make good what he 
fails to recover from the debtors is Intercession, for here is a contract 
with a creditor. 

' Intercession is either (A) Privative or.(B) Cumulative. 

A. Privative Intercession is the substitution of one obligation 
for another. 

(1) Substitution for an actually pre-existent debt involves No- 
VATION, i.e. the extinction of such preceding debt, and is called 
Expromissio. Expromission, the discharge of a debtor by taking 
his place in relation to the creditor, may be considered as including 
Defensio, the defence of an absent debtor in a suit instituted by 
the creditor; for then the volunteer defendant became liable to 
condemnation in place of the original debtor: Suscipit enim in se 
alienam obligationem, quippe quum ex hac re subeat condemna- 
tionem, Dig. 16, 1, 2. 

(2) Substitution, not for an .actually pre-existent obligation 
which is novated, but for an obligation which would have to be 
incurred by another person if the present obligation were not 
assumed, is called INrERvENTIO. Si quum essem tecum contrac- 
turus, mulier intervenerit ut cum ipsa potius eontraham, videtur 
intercessisse, Dig. 16, 1, 8, 14. 

B. Cumulative Intercession, or the addition of an obligation to 
an obligation, is either Partial or Total, according as either part or 
the whole of the object of the first obligation is the object of the 
second or additional obligation. 

(3) Of Partial intercessors we find an example within the limits 
of Italy, in Sponsors and Fidepromissors under the operation of the 





ri. $$ 110-127.] INTERCESSIO. 379 


lex Furia. By this law the liability of each sponsor was in inverse 
ratio to their number, § 121. Whether an Italian Sponsor who 
had not availed himself of the limitation of his liability under the 
lex Furia was entitled to Regressus under the older lex Appuleia, 
was a matter of controversy, ibid. 

Total Intercession is divided, according as several debtors are 
bound by one single obligation or several distinct, though similar, 
obligations, into two classes, Correality and Solidarity. 

Correality is subdivided into two classes, according as all the 
debtors are equally principals and originally interested, or some are 
principal and others only subsidiary or accessory. 

Correality in which all the debtors are interested as prineipals 
has no specific name, but bears in.a distinetive meaning the generie 
name of cORREALITY. As Intercession has been defined to be the 
assumption of an alien debt (alena obligatio), this Correality is 
not a species of Intercession. 

(4) Correality in which one debtor is principal and others are 
accessory is instanced in Fipesussio. There is not only Correality 
between the principal and each Fidejussor but also between the 
several Fidejussors. This is denied by Savigny, Law of Obligations, 
$ 25, who asserts that though there is Correality between the 
principal and each Fidejussor there is none between the several 
Fidejussors : but Vangerow truly observes, § 578, that if the obli- 
gation of each Fidejussor is identical with the obligation of the 
principal it follows, by the fundamental axiom of syllogism, that 
the obligations of the several Fidejussors are identieal with one 
another: in other words, that there is Correality between the 
several Fidejussors.  Fidejussors have Beneficium divisionis by the 
epistle of Hadrian, $ 121, Beneficium excussionis by Novella 4 of 
Justinian, and emptio nominis or Beneficium cedendarum actionum. 
If he neglected to avail himself of these, a Fidejussor, like other 
correal debtors, had no regressus against his co-fidejussors, Dig. 
46, 1, 89. 

Correality is again instanced in the sponsors and Fidepromissors 
of the provinces external to Italy under the operation of the lex 
Appuleia. Unlike other correal debtors they had by this statute 
Regressus by means of the action pro Socio, $ 122; though like 
Fidejussors, they also had Beneficium divisionis under the con- 
stitution of Hadrian, $ 121. 

(5) Solidary Intereession is exemplifiedby the Mandator in the 


380 DE OBLIGATIONIBUS. [rr §§ 110-127,. 


contract called MANDATUM QUALIFIcaTUM. Here a lender gives 
credit to a borrower in reliance on the representations of the 
mandator, § 156, who thus is a guarantor of the borrower’s sol- 
vency: when there are several such guarantors, their liability is 
solidary. 

(6) Other Solidary Intercessors, are the Constituentes in con- 
STITUTUM DEBITI ALIENI. Both the Mandator and the Constituens 
have Beneficium divisionis, Cod. 4, 18, 8, and Beneficium excussionis, 
Novella 4. 

§ 114. The peculiarity of the rules respecting the adstipulator 
arise from the fact that he was & mandatary, agent, or trustee, the 
repositary of a special personal confidence. Hence his rights did 
not pass to his heres nor to his paterfamilias. Ordinary rules, 
however, obtained so far, that he could not sue so long as he 
remained a filiusfamilias, nor after his rights had been extinguished 
by a capitis diminutio. 

The principal funetion of the Adstipulator and one function of 
the Adpromissor (the chief function of the latter of course was 
suretyship) seems to have been processual agency, i.e. the repre- 
sentation of the principal as plaintiff or defendant in a suit at a 
period when the doctrine of Agency was still undeveloped. 

We must suppose a time when the Cognitor and Procurator, 
whose appointment as described, 4 § 88, was such a simple 
matter, were institutions not yet invented: a period like that of 
Statute-process (legis actio), concerning which we are told: Nemo 
alieno nomine lege agere potest, Dig. 50, 17, 128, *only principals 
could be parties to a suit ;’ and when, nevertheless, circumstances 
often prevented a principal from litigating in person. In questions 
of Property he might get over the difficulty and practically employ 
an agent by fiduciary mancipation, Dig. 4, 7, 4, 3, of the property in 
dispute to a third person, who would then litigate with the adver- 
sary in the rights of his auctor, or the person from whom he 
deduced his title. But in questions of Obligation this course was 
not open, for Obligation was not thus transferable. Novation or 
Delegation might effect the purpose, 2 § 38, 3 § 176: bat Dele- 
gation required the concurrence of the debtor or adversary: and 
Cession or Procuration, 2 § 89, we have assumed to be as yet un- 
invented. At this period, then, the only remaining available 
representative in a suit concerning contractual obligation was a 
person who had been concerned, though merely as an accessory, 


nr. $$ 110-127. ] INTERCESSIO. 381 


§ 126, in the original convention. Ihering, § 56. When the deve- 
lopment of the law of mandate led to the frequent appointment of 
a procurator, the adstipulator ceased to be necessary except for 
securing performance of an act after the death of the principal 
promisee, § 117. He ceased to be necessary even for this purpose 
when a stipulation for an act after the death of the stipulant was 
decided to be valid, and accordingly the adstipulator has disappeared 
from the legislation of Justinian. 

§115. The adpromissor at different epochs of the law appears as 
sponsor, fidepromissor, fidejussor. A sponsor could only intervene 
when both parties were Roman citizens, a fidepromissor was used 
when either party was a peregrinus, § 120. There is a striking 
parallelism between the rules relating to a sponsor or fidepromissor 
and those relating to an adstipulator. The obligation does not 
pass to the heres, and the stipulation of the sponsor or fidepromissor 
may be valid when that of the principal, though valid by Jus 
gentium, is by Civil law invalid ; for instance, for a performance 
after the death of the principal promisee. The sponsor and fide- 
promissor can only be adjuncts to a stipulation, the fidejussor may 
be employed to guaranty any obligation. 

§ 121. The lex Furia discharging the sponsor and fidepromissor 
of liability in two years and limiting the liability of each to a 
proportionate part, is supposed to have been enacted s.c. 95. 

The epistle of Hadrian (4.p. 117-188) left the fidejussor liable 
originally (ipso jure) to the whole debt, with a counteractive right 
(exceptio) to reduction, enforced by a clause in the formula, of which 
the following passage appears to give the terms: Si contendat fide- 
jussor caeteros solvendo esse, etiam exceptionem ei dandam : Si non 
et illi solvendo sint, Dig. 46, 1, 28. ‘The contention of a fidejussor 
that his co-fidejussors are solvent may be expressed in an exception : 
Unless such and such co-guarantors are solvent. This privilege 
of the fidejussor is called Beneficium divisionis. 

$122. The lex Appuleia, which gave the sponsor or fidepromissor 
the action pro socio, whereby he could recover by contribution from 
his co-guarantors whatever he had paid in excess of his propor- 
tionate share, was passed B.c. 102. It was the rule of the provinces 
as the lex Furia was the rule of Italy. 

$ 128. The name of this law was first discovered by Studemund. 
Its date 18 not known, but as we gather from the text it was passed 
at a time when fidejussors were not yet instituted. 


382 DE OBLIGATIONIBUS. (xxx. $$ 110-127. 


$ 124. The lex Cornelis, the first which mentions the fidejussor 
as well as the sponsor and fidepromissor, limiting the amount for 
which the same guarantor could be bound as security for a con- 
tract either of mutuum or of stipulatio in the same year for the 
same principal to the same guarantee, was passed in the dictator- 
ship of Sylla, 5. c. 81, and seems to show that the stringency of 
the lex Furia had led to a more frequent employment of the 
fidejussor in place of the sponsor and fidepromissor. The 
sponsor and fidepromissor have vanished from the legislation of 
Justinian. 

§ 125. The lex Julia vicesima or vicesimaria was a law of 
Augustus, imposing, in support of the military treasury, a succes- 
sion duty of one twentieth of the value on the testamentary 
succession of all cives Romani. 

$127. Thelex Publilia, which enabled a sponsor who had paid the 
debt of his principal, unless reimbursed within six months, to recover 
by actio depensi, a form of manus injectio pro judieato (4 § 22), 
twice the amount of the original debt, is of uncertain date. 

The right of a fidejussor to have a cession from the creditor 
of his righte of action is called Beneficium cedendarum actionum. 
If he neglected to avail himself of it and of hie Beneficium divisionis, 
he had no Regressus against his co-sureties, Dig. 46, 1, 39. 

A surety or guarantor of a debt may require the creditor to pro- 
ceed against the principal first, provided he offer to indemnify him 
in such proceedings, and to pay any deficiency in the sum which 
he may recover. This is called Beneficium excussionis, and was 
introduced by Justinian, Novella 4. 

In Correality, as has been remarked above (p. 377), the right of 
action against remaining co-debtors was extinguished by the institu- 
tion of a suit against one (litis contestatio), whatever the result of the 
suit, This power of litis contestatio to extinguish the creditor’s right 
of action when there was a relation of Correality between a number 
of debtors was doubtless a powerful motive towards substituting 
for Fidejussio other forms of guaranty involving Solidarity instead 
of Correality, and consequently free from process-consumption or 
extinction of right of action by mere litis contestatio. Such forms 
were Mandatum qualificatum ($$ 155—162 comm.) and Constitutum 
debiti alieni, Ata later period process-consumption became obsolete 
and in respect of Fidejussio was expressly abrogated by Justinian, 
Cod. 8, 41, 28. 


m1 §§ 128-134.] DE LITTERARUM OBLIGATIONE. 383 


The general name of a stipulation by way of security for a debt 
is cautio. If the debtor alone was bound, it was called nuda repro- 
missio. If sureties were also bound, it was called satisdatio or 
satisacceptio. 

Before quitting the subject of suretyship we must observe a 
peculiar feature of Roman law, the incapacity of women:to play the 
part of guarantors. This was enacted by the senatusconsultum 
Velleianum passed.in the reign of Claudius, a.p. 46. 

Though the senatusconsultum seems to say that no action shall 
be brought against a female guarantor, yet the frequent occurrence 
of the phrase, exceptio senatusconsulti Velleiani, shows that an 
action might be brought, but was barrable by an exception pleading 
the senatusconsult. 

The most noticeable rule of English law respecting the contract 
of guaranty is that i& must be in writing. No action shall be 
brought whereby to charge the defendant upon any special promise 
to answer for the debt, default, or miscarriage of another person, 
unless the agreement upon which such action shall be brought, 
or some memorandum or note thereof, shall be in writing and 
signed by the party to be charged therewith, or some other person 
thereunto by him lawfully authorized, Statute of Frauds, 29 
Charles IT. 


DE LITTERARUM OBLIGATIONE, 








$128. Litteris obligatio fit ueluti 
nominibus transscripticiis. fit au- 
tem nomen transscripticium duplici 
modo, uel a re in personam uel a 
persona in personam. 


$129. (A re in personam trans)- 
scriptio fit, ueluti si id quod tw ex 
emptionis causa aut conductionis 
aut socletatis mihi debeas, id ex- 
pensum tibi tulero. 


$130. À persona in personam 
transscriptio fit, ueluti si id quod 
mihi Titius debet, tibi id expensum 


$ 128. Literal contracts, or obli- 
gations created by writing, are ex- 
emplified by transcriptive entries 
of debit or credit in a journal. 
Transcriptive entries are of two 
kinds, either from thing to person 
or from person to person. 

$ 129. Transcription from thing 
to person is exemplified when the 
sum which you owe me on a con- 
tract of sale or letting or partner- 
Bhip is debited to you in my journal 
as if you had received it as a 
loan. 

$ 130. Of transcription from 
person to person we have an ex- 
ample when the sum which Titius 





384 


tulero, id est si Titius te delegauerit 


§ 131. Alia causa est eorum 
nominum quae arcaria uocantur. 
in his enim ret, non litterarum 
obligatio consistit, quippe non aliter 
ualent, quam si numerata sit pe- 
cunia; numeratio autem pecuniae 
re facit obligationem. qua de 
causa recte dicemus arcaria nomina 
nullam facere obligationem, sed 
obligationis factae testimonium 
praebere. 

§ 132. Vnde (non) proprie di- 
citur arcartis nominibus etiam pere- 
grinos obligari, quia non ipso no- 
mine, sed nwmeratione pecuniae 
obligantur; quod genus obligationis 
iuris gentium est. 


$ 133. Transscripticiis uero no- 
minibus an obligentur peregrini, 
merito quaeritur, quia quodammodo 
iuris ciuilis est talis obligatio ; 
quod Neruae placuit. Sabino autem 
et Cassio uisum est, si a re in per- 
sonam fiat nomen transscripticium, 
etiam peregrinos obligari; si uero 
& persona in personam, non obli- 


gari. 

$ 134. Praeterea litterarum obli- 
gatio fieri uidetur chirographis et 
syngraphis, id est si quis debere se 
aut daturum se scribat; ita scilicet 
si eo nomine stipulatio non fiat. 
quod genus obligationis proprium 
peregrinorum est. 


DE OBLIGATIONIBUS. 


[rrr. $$ 128-134. 


owes me is entered in my journal 
as advanced to you, assuming that 
you are indebted to Titius and that 
Titius has substituted me for him- 
self as your creditor. 

$131. Transcriptive entriesdiffer 
from mere entries of a person as 
debtor to cash ; here the obligation 
is not Literal but Real, for money 
must have been actually paid, and 
payment of money constitutes a Real 
obligation. Consequently the entry 
of a person as debtor to cash does 
not constitute an obligation, but is 
evidence of an obligation. 


$ 132. Accordingly, it is not 
correct to say that debits to cash 
bind aliens as well as citizens, be- 
cause it is not the entry in the 
journal but the payment of money 
that constitutes the contract, a 
mode of obligation which is common 
to all the world. 

$ 133. Whether transcriptive 
debits form & contract binding on 
aliens has been doubted with some 
reason, for this contract 1s an in- 
stitution of civil law, as Nerva held. 
Sabinus and Cassius, however, held 
that transcription from thing to 
person forms a contract binding on 
an alien, though not transcription 
from person to person. 

$ 134. Another Literal obligation 
is that created by chirographa and 
syngraphae, or written acknowledg- 
ments of debt or promises to pay, 
unaccompanied by stipulation. This 
mode of contract 1s proper to aliens. 


One of the account books kept by the Romans, a nation of book- 
keepers, was a waste or day book, called Adversaria, into which all 
transactions were entered as they occurred. At the end of each 
month the contents of the Adversaria were posted into the more 


formal journal, the Tabulae, or Codex accepti et expensi. 


Accord- 


ing to Dionysius of Halicarnassus every Roman had to take an 
oath once in five years before the Censors that his book-keeping 


nr.$$128-134. DE LITTERARUM OBLIGATIONE. 885 


was honest and accurate. On the subject of Roman book-keeping 
and the literal contract, see I. M. Voigt, Abhandl. der K. Süchs. 
Gesellschaft d. Wissenschaften, Bd. 10, 1887, p. 515, &c. 

One species of Literal obligation, namely Expensilation, in the 
nature of a novation or transformation of a pre-existing debt into 
one of a stricter form, was effected by an entry in these domestic 
registers, and from Cicero, Pro Roscio Comoedo, c. 5, we may infer 
that the entry was binding even though it had not been transferred 
from the Adversaria to the Codex. The creditor, apparently, with 
the consent and by the order of the debtor, debited the latter with 
a certain sum in the books of the creditor (expensilatio). After- 
wards a corresponding entry was made by the debtor in the books 
of the debtor (acceptilatio). The literal contract, however, appears 
to have been complete without the latter entry. 

Apparently, the true contract was the entry in the creditor's 
book. The consent (jussus) of the debtor to this entry was neces- 
sary, but not restricted to any particular form. The entry in the 
debtor’s book was evidence, but not the only admissible evidence, 
that he had assented to the entry in the creditor’s book. 

Theophilus, in his Greek version of the Institutes, gives the 
following account of the process: 7j 82 literis [évox}] écri rd waAasdy 
xpéos els xawdp ddyetoy peracynpari(ópevov püpact xai ypáppact 
Tumixots.... qv 0? rara TA phuara, Grwa kal éAéyero xal éypádero 
rovs éxardy xpvaois, obs épol ef airlas picOdcews ypeworeis, od ex 
cvrOkys kai duodoylas décets TOv olkelov ypappiárov ; etra éveypadero, 
és and Tod évóxov Hon yevouévov ex rijs picOdcews, ravra rà pipara' 
"Ex rs cuvOykns óe( rà» olxelwv ypagpáror. Kat 7j p£v mporépa 
evox?) deo Bévvvro, kaworépa de érixrero, Theophilus, 8, 21. * A literal 
obligation was an old debt transformed into a new loan by certain 
solemn words and writings. 'The words which were spoken and 
written in the register were as follows: ‘The hundred aurei which 
you owe me on aecount of rent will you pay me on the convention 
and acknowledgment of your own journal?” Then followed, as if 
written by the person indebted for rent, these words: “I owe you 
that sum by the admission of my own journal.”  Whereby the 
pre-existing obligation was extinguished and a new one created.’ 
[From the mention of ‘solemn words’ Theophilus is supposed to 
have confounded Expensilatio, which was independent of spoken 
words, with Stipulatio accompanied by a written record or CAUTIO. | 

The account of Theophilus clearly only applies to one form of 

cc 








886 DE OBLIGATIONIBUS. (mm. $$ 128-134. 


expensilation, the transcriptio a re in personam. The use of this 
kind of transcriptio is obvious; it was a mode of converting Form- 
less contracts into Formal contracts—equitable obligations into 
civil obligations: of metamorphosing claims recoverable by actions 
ex bona fide, e.g. conducti locati, empti venditi, which in many 
points favoured the defendant, into debts recoverable by the short 
and sharp remedy of the civil action of Condictio, which, when 
brought for certa pecunia credita, was the more formidable to a dis- 
honest litigant, as it was accompanied by sponsio poenalis, whereby 
the vanquished party forfeited a third of the sum in litigation, in 
addition, if he was the defendant, to the original claim, 4 § 171. 
A narrative of Cicero shows the employment and possible mis- 
employment of this transcriptio. He relates how a purchaser was 
defrauded by a vendor, and in consequence of the form of contract 
had no redress. Stomachari Canius. Sed quid faceret? Nondum 
enim Aquilius collega et familiaris meus protulerat de dolo malo 
formulas, De Off. 3, 14. ‘The purchaser was indignant, but he 
was helpless, for my colleague Aquilius had not then invented the 
action of Fraud.’ It may occur to us, on hearing the story, that as 
the actio Empti was an action ex bona fide, that is, one in which 
the judex was empowered to consider allegations of bad faith, the 
defrauded purchaser would not have been without a remedy. But, 
as Savigny points out, Cicero had guarded against this objection by 
a certain feature which he gives to the narrative. Emit homo 
cupidus et locuples tanti quanti Pythius voluit, et emit instructos. 
Nomina facit, negotium conficit. ‘The purchaser was eager and 
rich, he bought at the price the seller named, and he bought the 
gardens ready furnished. The contract is by expensilatio; the 
business is concluded.’ Nomen, which sometimes signifies any 
debt, is here used, in a specific sense, for a debt created by Literal 
contract; accordingly, nomina facit implies that the purchase, as 
soon as concluded, had been novated, § 176, i.e. extinguished by 
metamorphosis into a ledger debt; so that the transaction was 
removed from the domain of equity to that of civil law, which in 
its primitive simplicity had no provision for dolus malus. 
Transcription a persona in personam was the substitution or 
exchange of a debt owed by C to B, in discharge of a debt owed by 
B to A; or, at all events, the substitution of C in lieu of B as 
debtor to A. It is impossible to form an exact conception of the 
mode in which these transcriptions were operated without a greater 


m. §§ 128-134.] DE LITTERARUM OBLIGATIONE. 387 


knowledge than we possess of the Roman method of book-keeping. 
Nomen facere, as we have just stated, is to contract a debt by literal 
obligation. Nomen signifies the name of the debtor, as in the line 
of Horace: Scriptos nominibus certis expendere nummos; ‘ Re- 
corded on his ledger to lend moneys to solvent borrowers.’ In the 
business of bankers (argentarii), whose book-keeping of course was 
extremely regular, the Literal contract appears to have survived 
when it had fallen into desuetude in other quarters. 

The word Transcriptitia may refer to the ¢ransfer involved in 
Novation: Savigny however prefers the following origin of the 
term. The Roman account-book (tabulae accepti et expensi), he 
supposes, was essentially a Cash-book; a record of incomings and 
outgoings of actual cash: i.e. the monthly or annual balance of 
the debits and credits ought to correspond with and explain the 
metallic contente of the cash-box or arca at the end of the month 
or year. This correspondence or agreement would be destroyed by 
the introduction of Fictitious loans (expensilatio) into the accounts, 
unless every such entry to the credit of the cashier or chest was 
neutralized and cancelled by a cross or opposite entry, of an equally 
fictitious character, to the debit of the chest or cashier. But if 
this device was adopted the balance of the book would coincide 
with the actual contents of the chest; and the fictitious entries 
would be called Transcriptitia because they were always double: 
because each was always accompanied by its shadow across the 
page. Verm. Schriften, 1, 205, &c. 

In the time of Justinian both of the modes of Expensilatio, pro- 
perly confined to Roman citizens, had become obsolete; as also 
another form of Literal contract, the Syngrapha or Chirographum, 
available where either of the parties was an alien. Syngrapha and 
Chirographum, apparently, are synonymous, and signify any con- 
tract in writing, such contract in Greece being always ground to 
support an action, whatever its subject or form. In the Corpus 
Juris the term Chirographum generally signifies a document which is 
evidence of the existence or discharge of a debt, and the term Syn- 
grapha occurs in the Greek Novellae of Justinian in the same sense, 

The desuetude of Nomina transcriptitia was probably due to the 
invention of coNsTITUTUM, a Consensual contract, which instead of 
eonverting like Expensilatio an equitable obligation into an obli- 
gation of jus strictum, superadded a civil obligation to a previous 
obligation, whether equitable or civil [Ubi quis pro alio constituit 

Cce2 


388 DE OBLIGATIONIBUS. [rrr. $$ 128—134. 


se soluturum, adhuc is pro quo constituit obligatus manet, Dig. 13, 
5, 28]; and which with its excessively penal sponsio, 4 $ 171, gave 
the creditor even a more effective remedy than the action on 
Expensilatio (Condictio for pecunia certa credita). 

Arearium nomen was the record, not of a fictitious loan, like 
nomen transcripticium, but of the counting out of money from the 
cash-box (arca), that is, of a genuine loan, and was, accordingly, a 
memorandum of a Real obligation. 

The coexistence of Nomina Arcaria with Nomina Transcriptitia 
shows that entry in a Ledger did not operate a novation and con- 
vert a debt into a ledger debt, unless such effect, was intended. 

A stipulatio, unlike the entry in the journal or ledger, was not an 
invariable accompaniment of an advance of money (mutui datio, an- 
numeratio); and, when it was employed simultaneously with annum- 
eratio, unlike expensilatio, it always constituted the sole contract : 
there were not two contracts, a Real contract and a Verbal contract, 
but onlya Verbal contract,and this without the intervention of Nova- 
tion, Dig. 46, 2, 6, 1, and Dig. 46, 2, 7. Nam quoties, pecuniam mu- 
tuam dantes, eandem stipulamur, non duae obligationes nascuntur sed 
una verborum, Dig. 45, 126,2. ‘An advance accompanied by Stipu- 
lation does not produce two contracts, but one, a Verbal contract. 

Savigny’s doctrine that personal execution (incarceration) of a 
judgment debtor (judicatus) was confined to actions brought on 
loans of money (annumeratio) accounts satisfactorily for a debt 
being sometimes left in its original form of a Real contract 
(mutuum), sometimes being converted into a Verbal contract 
(stipulatio), or Literal contract (expensilatio). When the interest 
of the borrower prevailed, the contract would take the form of 
stipulatio or expensilatio, with a milder remedy; when the interest 
of the lender predominated, the contract would retain the form of 
mutui datio, with its more stringent execution. 

It may assist us in understanding the distinction of Formless and 
Formal contracts, Verbal and Literal, if, before we quit this subject, we 
cast a hasty glance at the corresponding institutions of English law. 
, Inthe eye of the English law, contracts are either Simple (parol), 
that is, enforceable only on proof of consideration, or Special, that 
is, binding by the solemnity of their form. Special contracts are 
either contracts under Seal or contracts of Record. A common 
species of Deed, or written contract under seal, is the Bond or 
Obligation, which, like Stipulatio, is used to secure the payment 


nr §§ 135-138.] DE CONSENSU OBLIGATIONE. 389 


of money or performance of any other act, and, like Stipulatio, 
either binds the debtor alone or the debtor and sureties. It con- 
sists of an obligatory part or penal clause, and a condition added, 
that if the obligor does some particular act the obligation shall 
be void, but else shall remain in full force. 

Contracts of Record are either recognizances or Judgment debts. 

A Recognizance is an acknowledgment before a court or magi- 
strate that a man owes the Queen or a private plaintiff (as the case 
may be) a certain sum of money, with a condition avoiding the 
obligation to pay if he shall do some particular act, as, if he shall 
appear at the assizes, keep the peace, pay a certain debt, or the like. 
A Recognizance resembles Stipulation in its form, being entered 
into by oral interrogation and answer, but differs in that it can 
only be taken before a court or magistrate duly authorized, whereas 
stipulatio was transacted between private parties. 

A Judgment debt, or debt due by the judgment of a court of 
record, is sometimes the result of a judgment in an adverse suit, 
but sometimes it is merely a form of written contract, and may be 
entered into in various ways. A fictitious action is brought, and 
the party to be bound either makes no reply, or fails to instruct his 
attorney, or confesses the action and suffers judgment to be at once 
entered up; or the party to be bound consents to a judge's order 
authorizing the plaintiff to enter up judgment and issue execution 
against him, either at once and unconditionally, or on a future day 
conditionally on non-payment of whatever amount may be agreed 
upon; or the party to be bound gives a warrant of attorney, that 
is, authority to an attorney to confess an action of debt or suffer 
judgment to go by default, the warrant being accompanied by a 
defeazance declaring it to be merely a security for payment of a 
certain sum and interest, and providing that no execution shall 
issue unless default in the payment shall have been made. 

The conjunction of a penal clause and a condition avoiding it is 
common to the judgment debt, recognizance, bond, and stipulation. 
The Roman Nexum, as we have stated, had apparently the effect 
of a Judgment debt. 

DE CONSENSU OBLIGATIONE. 

$ 135. Consensu fiunt obliga- $135. Consent creates a contract 
tiones inemptionibusuenditionibus, in purchase and sale, letting and 
locationibus conductionibus, socie- hiring, partnership, agency. 
tatibus, mandatis, 


390 


$136. Ideo autem istis modis 
consensu dicimus obligationes con- 
trahi, quia neque uerborum | neque 
scripturae ulla proprietas desidera- 
twr, sed sufficit eos qui negotium 
gerunt, consensisse. unde inter 
absentes quoque talia negotia con- 
trahuntur, ueluti per epistulam aut 
per internuntium ; cum alioquin 
uerborum obligatio inter absentes 
fieri non possit. 

$ 137. Item in his contractibus 
alter alteri obligatur de eo quod 
alterum alteri ex bono et aequo 
praestare oportet; cum alioquin in 
uerborum obligationibus alius sti- 
puletur, alius promittat, et in no- 
minibus alius expensum ferendo 
obliget, alius obligetur. 


$ 138. [Sed absenti expensum 
ferri potest, etsi uerborum obligatio 
cum absente contrahi non possit. | 


DE OBLIGATIONIBUS. 


[ur. $6 139—141. 


$136. Inthese contracts consent 
is said to create the obligation, be- 
cause no form of words or of writing 
(nor any delivery) is required, but 
the consent of the parties is suffici- 
ent. Absent parties, therefore, can 
form these contracts; for instance, 
by letter or messenger ; whereas in 
Verbal contracts presence is neces- 


sary. 


§ 137. Further, these contracts 
are bilateral, that is, both parties 
incur a reciprocal obligation to per- 
form whatever is fair and equal ; 
whereas Verbal and Literal con- 
tracts (and the Real contract of 
mutuum) are unilateral, that is, 
confer only a right on one party, 
and impose only an obligation on 
the other. 

§ 138. Absence is no impediment 
to Literal contracts, though it is to 
Verbal. 


Besides the four Consensual contracts which are named in the 





text, certain praetorian and statutory conventions, though not 
denominated contracts, were enforceable by action. An example of 
praetorian pacts, or pacts enforced by the praetor, is constitutum or 
constituta pecunia, which we mentioned when treating of stipula- 
tion, as a form of consensual guaranty. An instance of statutory 
pact, or pact made valid by statute, is donatio inter vivos. It was 
irrevocable, and the donor could be forced by action to perform his 


promise. 


DE EMPTIONE ET VENDITIONE. 


§ 139. Emptio et wenditio con- 
trahitur, cum de pretio conwenerit, 
quamuis nondum pretium nume- 
ratum sit, ac ne arra quidem data 
fuerit; nam quod arrae nomine 
datur, argumentum est emptionis 
et uenditionis contractae. 

§ 140. Pretium autem certum 
esse debet. nam alioquin si ita 
inter nos conuenerit, ut quanti 
Titius rem aestimauerit, tanti sit 


$139. The contract of purchaseand 
sale is complete so soon as the price 
is agreed upon and before the price 
or any earnest money'is paid. The 
earnest money is merely evidence of 
the completion of the contract. 


§ 140. The price must be certain. 
If there is an agreement to purchase 
at a price to be fixed by Titius, 
Labeo and Cassius say the contract 


ut. §§ 139-141.] DE EMPTIONE ET VENDITIONE. 391 


empta, Labeo negauit ullam uim 
hoc negotium habere; cuius opini- 
onem Cassius probat. Ofilius et 
eam emptionem et uenditionem ; 
cuius opinionem Proculus secutus 


$141. Item pretium in nume- 
rata pecunia consistere debet. nam 
in ceteris rebus an pretium esse 
possit, ueluti homo aut toga aut 
fundus alterius rei (pretium esse 
possit), ualde quaeritur. nostri 
praeceptores putant etiam in alia 
re posse consistere pretium. unde 
ilud est quod uulgo putant per 
permutationem rerum emptionem 
et uenditionem contrahi, eamque 
speciem emptionis uenditionisque 
uetustissimam esse ; argumentoque 
utuntur Graeco poeta Homero qui 
aliqua parte sic ait : 
("E»üe» dp’ olvi(ovro kapnkopócrres 

"Axatot, 
GÀXo« pev yarn, Dros 8 atbom odnpe, 
dÀXox O6 favois, GAAot 8 adrjzor Bóeaow, 
dÀXo« 3° avdparddecct. ) 
diuersae scholae auctores dissen- 
tiunt aliudque esse existimant per- 
mutationem rerum, aliud. emp- 
tionem et uenditionem ; alioquin 
non posse rem expediri permutatis 
rebus, quae uideatur res uenisse, 
et quae pretii nomine data esse, 
sed rursus utramque rem uideri 
et uenisse et utramque pretii no- 
mine datam esse &bsurdum uideri. 
sed ait Caelius Sabinus, si rem 
tibi uenalem habenti, ueluti fun- 
dum, [acceperim et] tretii nomine 
hominem forte dederim, fundum 
quidem uideri uenisse, hominem 
autem pretii aomine datum esse, 
ut fundus acciporetur. 


is invalid, Ofilius and Proculus say 
it is valid. 


$ 141. The price should be in 
money, for it is much disputed 
whether anything but money, such 
as a slave, a robe, a piece of land, can 
be treated as price. My school hold 
the affirmative, and regard exchange 
as a species, and the oldest species, 
of purchase and sale; in support 
of which they quote the lines of 
Homer: 
‘Here touched Achaean barks in 
quest of wine. 
They purchased it with copper and 
with steel, 
With hides, with horned cattle, and 
with slaves.’ 
The other school maintain the nega- 
tive, and distinguish between ex- 
change and purchase and sale, be- 
cause in exchange we cannot deter- 
mine which is the thing sold and 
which is the price, and both things 
cannot be regarded as both the 
thing sold and the price. Caelius 
Sabinus says that if Titius offers, 
say, land for sale, and I give him a 
slave for it, the thing sold is the 
land and the price is the slave [be- 
cause the preceding offer determines 
which object is res and which is 
pretium |. 


It is necessary to distinguish clearly between the completion of a 
contract of sale and the subsequent transmutation of property; 
between the creation of a jus in personam and the creation of a jus 
in rem; between the acquisition of au obligation and the acquisition 


of ownership. 


892 DE OBLIGATIONIBUS. (ax. $$ 139-141. 


The contract is complete as soon as the price is agreed upon, but 
no property passes until the price is paid and possession is de- 
livered, or, in the case of & sale on credit, until possession is 
delivered, Dig. 18, 1, 19. ‘Sale and delivery do not pass property 
unless the price is paid, or security is given for the price, or credit 
is given without security, Inst. 2, 1, 41. ‘Sale and delivery do 
not pass property, unless the vendee pays the price, or gives the 
vendor security; for instance, by a guarantor discharging the 
vendee, or by mortgage. If, however, the sale is on credit, owner- 
ship immediately passes.’ 

By English law, if the contract is for the sale of sPECIFIC goods, 
ready for delivery, there is no distinction between the jus in personam 
and the jus in rem; the contract is complete and the property 
passes at one and the same moment. 

If the sale is on credit, property passes immediately upon the 
striking of the bargain or understanding as to terms, even before 
delivery of the goods. 

If the sale is for ready money, there must be a delivery or tender 
of the whole of the goods or price, or delivery and acceptance of 
part of the goods or price, before there is any contract, and at the 
same moment the property is transmuted from the vendor to the 
vendee. 

If the contract is not for the purchase of specific goods, but of 
goods of a certain nature or class, there arises a distinction between 
property and obligation; for, though the contract is complete, 
no property passes until the particular goods are ascertained by 
delivery. 

In the sale of land the equitable estate is conveyed by the contract 
to convey, when perfected by the payment of the purchase-money, 
and without notice to the party in whom the legal estate is vested : 
the legal estate is only passed by the subsequent deed. Formerly the 
deed was a Feoffment which was inoperative without livery of seisin, 
that is, delivery of possession; but now the deed of Grant passes 
property without delivery of possession. The assignment of an 
equitable interest in personal estate is not perfect, as against an 
assignee for valuable consideration, without notice to the trustee. 

By the Code Napoleon delivery is requisite for the transfer of 
property in movables, but property in immovables is transferred as 
soon as the contract is complete. 

By Roman law, the goods are at the risks of the purchaser as 


m1. § 139-141.] DE EMPTIONE ET VENDITIONE. 393 


soon as the contract is complete, and before the property is trans- 
muted. The formula, res perit domino, therefore, does not apply to 
the contract of purchase and sale, as it does to other contracts, e.g. 
to mutuum commodatum, pignus. 

In English law, the risk always belongs to the person in whom 
the property resides, and the maxim, res perit domino, is applicable 
to sales. 

$ 139. Arrha, as a general rule, was evidence of the completion 
of contract, but not always, at least in the time of Justinian. If 
the parties so agreed, arrha was only a penal sum, whose forfeiture 
entitled either negotiator to recede from a negotiation or rescind 
a completed contract, Cod. 4, 21, 17. In the absence of such 
special agreement, in default of voluntary performance, performance 
could be enforced by action, and forfeiture of the arrha was cumu- 
lative upon and additional to specific performance: the vendee, if he 
was in default, could not reckon the arrha as part of the purchase- 
money ; and the vendor, if in default, besides delivery of possession 
and repayment of the arrha, was compelled to pay an equal sum to 
the vendee. 

In English law, the earnest is not an evidence of a contract, but, 
Where it occurs, an essential part of the contract, which, therefore, 
is not Consensual, but Real. 

$ 140. Where the price is left to be fixed by an arbitrator, 
Justinian enacted, in conformity with the opinion of Proculus, that 
the contract is binding if the arbitrator makes his valuation. 

§ 141. After the time of Gaius, a constitution of Diocletian and 
Maximian (A.D. 286-305), conformably to the opinion of Proculus, 
declares exchange or barter to be a Real contract, Cod. 4, 64, 3. 
‘ An agreement to exchange without part execution cannot support 
an action.’ Accordingly, we have mentioned it as belonging to the 
miscellaneous class of contracts Real innominate. 

The obligation of the vendor was not to transfer quiritarian 
ownership (ut rem emptoris faciat), but merely to secure the vendee 
in undisturbed enjoyment (ut praestet habere licere) of the article 
sold, that is, to give him vacant possession and guarantee him 
against eviction. Accordingly, if the vendee is judicially molested 
in his possession, he summons his vendor to defend his title, and, 
if evicted, recovers against his vendor the loss he has sustained. 
Venditor si ejus rei quam vendiderit dominus non sit, pretio 
accepto, auctoritati manebit obnoxius, Paul. Sent. rec. 2, 17, 1. 


394 DE OBLIGATIONIBUS. [rrr. $$ 142-147. 


* À vendor, not proprietor, on receipt of the purchase-money is liable 
as warrantor.’ Auctoritas est actio pro evictione, Dig. 22, 2, 76. 
* Auctoritas is an action on eviction against the vendor.’ 

A sale was often accompanied by stipulations binding the vendor 
to repay twice the purchase-money in case of eviction, or in case 
the article sold was returned for unsoundness (duplae stipulatio). 
In the absence of express warranty the English law, applying the 
rule of Caveat emptor, except in the sale for a fair price of goods in 
the possession of the vendor, refuses to assume an implied warranty 
or covenant of title, or, except in certain exceptional circumstances, 
to assume an implied warranty of the goodness or soundness of the 
articles sold. But by Roman law, in the absence of such stipula- 
tions, warranty of the title and quality of the goods was held to be 
inherent in the contract of sale. In the case of faults of quality 
the purchaser could either recover part of the purchase-money by 
actio aestimatoria, or rescind the contract by actio redhibitoria. 

By English law mere inadequacy of price affords no ground for 
setting aside a sale, unless it be so gross as to afford a necessary 
presumption of fraud and imposition, and then a court of equity will 
grant relief. By Roman law a vendor could rescind a contract for 
the sale of land on proof that the purchase-money was only half the 
value, Cod. 4, 44, 2. 

Peculiar to the English law of sale is the provision of the Statute 
of Frauds, that contracts for the sale of lands must be in writing 
signed by the party to be charged: and contracts for the sale of 
goods for the price of 10 and upwards are not good unless in 
writing signed by the party to be charged, or unless the buyer 
accept and receive part of the goods, or unless he give something in 
part payment or in earnest to bind the bargain. 

So far as delivery or payment is essential to the completion of 
the contract of sale, it is clear that the contract is not Consensual, 
but Real. 


DE LOCATIONE ET CONDUCTIONE. 


§ 142. Locatio autem et con- 
ductio similibus regulis constitui- 
tur; nist enim merces certa statuta 
sit, non uidetur locatio et conductio 
contrabi. 

$143. Vnde & alieno atbitrio 
merces permissa sit, uelut quamn£t 
Titius aestimauerit, quaeritur an 


$ 142. Letting and hiring are 
governed by rules like those of 
purchase and sale. Unless the sum 
to be paid as hire is fixed, the con- 
tract is not complete. 

$ 143. And if the hire is to be 
fixed by an arbitrator, for instance, 
at the sum which Titius shall con- 


mm. §§ 142-147.] DE LOCATIONE ET CONDUCTIONE. 


locatio et conductio contrahatur. 
qua de causa si fulloni polienda 
curandaue, sfarcinatori sarcienda 
uestimenta dederim, nulla statim 
mercede constituta, postea tantum 
daturus quanti inter nos conuenerit, 
quaeritur an locatio et conductio 
contrahatur. 


$ 144. Ztem si rem tibi utendam 
dederim et inuicem aliam rem 
utendam acceperim, quaeritur an 
locatio et conductio contrahatur. 

$ 145. Adeo autem emptio et 
uenditio et locatio et conductio 
familiaritatem aliquam inter se 
habere uidentur, ut in quibusdam 
causis quaeri soleat, utrum emptio 
et uenditio contrahatur an locatio 
et conductio. ueluti si qua res in 
perpetuum locata sit, quod euenit 
in praediis municipum quae ea lege 
locantur, ut quamdiu [id] uectigal 
praestetur, neque ipsi conductori 
neque heredi eius praedium awufer- 
atur. sed magis placuit locationem 
conductionemque esse. 

$146. Item [quaeritur] si gla- 
diatores ea lege tibi tradiderim, 
ut in singulos qui integri exi- 
erint, pro sudore denarti Xx mihi 
darentur, in eos uero singulos qui 
occisi aut debilitati fuerint, denariz 
mille, quaeritur utrum emptio et 
uenditio an locatio et conductio 
contrahatur. et magis placuit 
eorum qui integri exierint, loca- 
tionem et conductionem contractam 
uideri, at eorum qui occisi aut 
debilitati sunt, emptionem et uen- 
ditionem esse; idque ex acciden- 
tibus apparet, tamquam sub condi- 
cione facta cuiusque uenditione 
an locatione. iam enim non dubi- 
tatur quin sub condicione res ueniri 
aut locari possint. 


$147. Item quaeritur, si cum 
surifice mihi conuenerit, ut is ex 
auro suo certi ponderis certaeque 


395 


sider fair, it is & question whether 
there is & contract of letting and 
hiring. Accordingly, if I give 
clothes to a fuller to clean or finish, 
or to a tailor to mend, and the re- 
muneration is not fixed at the time, 
but left to our subsequent agree- 
ment, it is a question whether there 
is a contract of letting and hiring. 

§ 144. The same question arises 
if I lend a thing for use and receive 
in retarn the loan for use of another 
thing. 

§ 145. Purchase and sale are 80 
nearly akin to letting and hiring 
that in some cases it is a question 
under which category a contract 
falls; for instance, when land is 
leased in perpetuity as occurs with 
the land of municipalities, which 
is leased on the condition that, so 
long as the rent is paid, the lessee 
and his heirs shall continue in pos- 
session. But here the better opinion 
is that the contract is one of letting 
and hiring. 


§ 146. If a band of gladiators 
are delivered on the following terms, 
that is to say, that for the perform- 
ance of every one who leaves the 
arena safe and sound there shall be 
paid twenty denarii, and for every 
one who is killed or disabled there 
shall be paid one thousand denarii, 
it is disputed whether the contract 
is one of purchase and sale or of 
letting and hiring; but the better 
opinion is that the unharmed were 
let and hired, the killed or disabled 
were bought and sold, the contracts 
depending on contingent events, and 
each gladiator being the subject of 
a conditional hiring and a con- 
ditional sale, for it 1s now certain 
that both hiring and sale may be 
conditional. 

$ 147. Again, if & goldsmith 
agrees to make me rings of a certain 
weight and fashion out of his own 


396 


formae anulos mihi faceret, et acce- 
pertt uerbi gratia denarios Cc, 
utrum emptio et uenditio an loca- 
tio et conductio contrahatur. Cas- 
sius ait materiae quidem emptionem 
uenditionemque contrabi, operarum 
autem locationem et conductionem. 
sed plerisque placuit emptionem 
et uenditionem contrahi. atqui si 
meum aurum ei dedero, mercede 
pro opera constituta, conuenit loca- 


DE OBLIGATIONIBUS. 


(xm. $$ 142-147. 


gold for, say, two hundred denarii, 
it is a question whether the con- 
tract is purchase and sale or letting 
and hiring. Cassius says the ma- 
terial is bought and sold, the labour 
is let and hired, but most writers 
hold that there is only a purchase 
and sale. If I provide the gold and 
agree to pay him for his work, the 
contract is held to be a letting and 
hiring. 


tionem conductionem contrahi. 


§ 143. Justinian decided that a hiring for a sum to be fixed by 
an arbitrator was valid, like a sale on similar terms, if the arbi- 
trator made his award; but that if the sum was left to the future 
agreement of the parties, or, § 144, if the consideration was not 
pecuniary but a reciprocal service, the convention was not a Con- 
sensual one of letting and hiring, but a Real contract innominate, 
deriving its validity from part execution, and to be enforced by the 
action in factum praescriptis verbis, Inst. 3, 24, 1, 2. 

§ 145. Where Gaius speaks of ager vectigalis, Justinian speaks 
of ager emphyteuticus or emphyteuticarius, because in his days the 
rules of these two kinds of tenure had been entirely assimilated. 
Ager vectigalis was land leased by the Roman people, or a munici- 
pality, or a sacerdotal college, or the Vestal Virgins, for various 
terms of years, for a rent either in money or in produce, usually 
amounting to one fifth or one seventh of the profits. Emphyteusis 
was the grant of land in perpetuity, or for a term of years, for an 
annual rent, subject to forfeiture, without claim for meliorations, on 
non-payment of rent by the emphyteuta for three years, or for two 
years if the land was held of the church. Land held in emphyteusis 
was alienable, devisable, descendible by intestacy. The proprietor, 
however, had a right of pre-emption, and a fine for admission of 
a devisee or alienee of one fiftieth of the value, Cod. 4, 66, 4; 
Novella, 120. 

Emphyteusis resembled locatio in that the property remained in 
the grantor ; it resembled venditio in that the grantee acquired not 
only detention of the land granted, like the hirer (colonus), but also 
possession, properly so called, and a proprietary right (jus in re, or, 
servitude) that nearly amounted to property or dominion, and could 
be maintained by actio vectigalis a real action against all the world, 
including the nude or nominal proprietor. 


nr.$$142-147.] DE LOCATIONE ET CONDUCTIONE. 397 


Zeno (A. D. 475-491) decided that Emphyteusis was a contract 
sui generis, distinct from both locatio and venditio, and requirmg 
for its validity to be reduced to writing, Cod. 4, 66, Inst. 3, 24, 8. 
Compare a similar provision of the English Statute of Frauds for 
all contracts relating to land. 

Like pignus, emphyteusis is a combination of jus in personam 
and jus in rem, the one created by convention in writing, the other 
by tradition. 

§ 146. Gladiators were either (1) prisoners of war, ‘ butchered to 
make a Roman holiday,’ or slaves who had committed some offence, 
1 § 18, or criminals under a capital sentence; or (2) freemen who 
voluntarily adopted the profession and hired themselves out (auc- 
torati, 3 § 199) to persons who maintained troops or companies 
(ludi familiae) of gladiators, either to make a profit, or to win the 
favour of the public, by their exhibition. The first gladiatorial 
show at Rome was exhibited B.c. 264. The passion of the populace 
for these exhibitions in the palmy days of Rome amounted to a 
mania; and a vast revolution in public sentiment was implied in 
their suppression, A. D. 825, by the following constitution of Con- 
stantine, Cod. 11, 48. ‘ Exhibitions of blood-shed are out of place 
in the reign of law and the bosom of a fatherland; and gladiatorial 
shows, therefore, are absolutely prohibited." 

Locator denotes the person who furnishes land or a house or 
other article to be used by another; conductor is the person who 
takes the land or house (called colonus in the first case, inquilinus 
in the second) or other article and pays a price.in money for its use. _ 
But in the case of opus faciendum, e.g. of a building to be con- 
structed, or an article to be manufactured, the person who pays the 
price, that is to say, the employer or orderer, is called locator ; the 
person who performs the work or construction and receives the 
price is called conductor. It may be worth inquiring how this 
anomaly arose, and what led to this inversion of the meanings of 
these correlative terms, and we shall find it in a certain incident 
common to these and other conventions, and which has induced the 
English law to regard them as composing a single class and to 
denote them by a common denomination. 

Deposit, loan for use, pawn or pledge, letting and hiring, and 
mandate, are grouped together in English law under the head of 
Bailments. ailment, derived from the French word bailler, ‘ to 
deliver,’ is defined to be a delivery of a chattel (movable) in trust 





398 DE OBLIGATIONIBUS. [urz. §§ 142-147. 


for a specific purpose ; or, at greater length, a delivery of goods on 
a condition that they shall be restored by the bailee to the bailor, 
or according to his direction, as soon as the purpose for which they 
were bailed shall be answered.  'These contracts, then, all imply 
a delivery from the bailor to the bailee and a redelivery from the 
bailee to the bailor or his order. Now in locatio-conductio operis 
faciendi, there is usually a delivery and a redelivery : for instance, 
goods are delivered to an innkeeper to be kept, or to a carner to be 
transported, or materials are delivered to a manufacturer to be 
fashioned, and. these goods and materials are to be redelivered at 
another time, or in another place, or in an altered form. It is this 
delivery and redelivery to which the Latin language always looks 
exclusively in fixing on the persons to be denoted respectively by 
the words locator and conductor; and, aecordingly, by locator it 
denotes the bailor, and by conductor the bailee, without regarding 
the fact that while in locatio-conductio rei or operarum the locator 
supplies a service for which the conductor pays the price, in locatio- 
conductio operis faciendi it is the locator who pays the price and 
the conductor who performs the service. 

Colonus, or the independent person who entered into a contract 
of locatio-conductio respecting land, must be distinguished from the 
colonus who mainly composed the agricultural population under the 
empire. Colonatus, the condition of the latter colonus, is an insti- 
tution whose origin is obscure, but which probably began to be 
common as early as A.D. 200. Colonatus was not a mere obligation 
or jus in personam, but a real right or jus in rem, and may be 
regarded as a new form of dependent status, a condition of subjec- 
tion to a superior, which may be classified with the status of familia 
or domestic relations. It was a condition midway between freedom 
and slavery. The colonus was liber and civis, but he was called by 
the lawgiver servus terrae. He was mseparably bound to the soil: 
a fugitive colonus, like a fugitive slave, was said to commit a theft 
of his own body, and he could be recovered by real action (vindi- 
catio) from any one who gave him harbour. He had property, but 
it was called peculium, and, though he could not be deprived of it 
like the slave, yet he could not aliene it without the consent of his 
lord. With certain exceptions, he could not maintain an action 
against his lord, who was called his patronus. Neither a colonus 
nor his descendants could divest themselves of their hereditary serf- 
dom. The colonus, having no Real right in the soil, paid no land 





m. $$ 148-154.] DE SOCIETATE. 399 


tax, but only a personal or capitation tax, like artisans and slaves. 
As having an inherited condition, the colonus or inquilinus was 
called originarius; as subject to the capitation tax he was called 
tributarius, capite censitus, adscriptitius, censibus adscriptus. He 
paid to his lord a certain annual rent (canon), usually in kind, and 
always incapable of augmentation. This fixity of his rent was the 
principal right which he enjoyed. See Savigny's Vermischte 
Schriften, 15. If, seeking in Roman law for types of Feudal in- 
stitutions, we find the germ of freehold tenure in Emphyteusis, 
the antitype of copyhold tenure may similarly be discovered in 
Colonatus. 


DE SOCIETATE. 


$ 148. Societatem coire solemus 
aut totorum bonorum aut unius 
alicuius negoti, ueluti mancipi- 
orum emendorum aut uendend- 
orum. 

$ 149. Magna autem quaestio 
fuit, an ita coiri possit societas, 
ut quis maiorem partem lucretur, 
minorem damni praestet, quod Q. 
Mucius (contra naturam societatis 
esse ezxistimcuM. sed Ser. Sulpicius, 
cuius) etiam praeualuit sententia, 
adeo ita coiri posse societatem exis- 
timauit, ut dixerit ilo quoque 
modo coiri posse, ut quis nihil 
omnino damni praestet, sed lucri 
partem capiat, si modo opera eius 
tam pretiosa uideatur, ut aequum 
sit eum cum hac pactione in socie- 
tetem admitti. nam et ita posse 
coir societatem constat, ut unus 
pecuniam conferat, alter non con- 
ferat, et tamen lucrum inter eos 
commune sit; saepe enim opera 


alicuius pro pecunia ualet, 


$150. Et illud certum est, ai 
de partibus lucri et damni nihil 
inter eos conuenerit, [tamen | aequis 
ex partibus commodum et incom- 
modum inter eos commune esse. 
sed si in altero partes expressae 


$ 148. À partnership either ex- 
tends to all the goods of the part- 
ners or is confined to a single busi- 
ness, for instance, the purchase and 
pale of slaves. 

$149. It has been much can- 
vassed whether the law would re- 
cognize a partnership formed on the 
terms that a partner should have 
a greater share in the profit than 
he has in the loss. Quintus Mucius 
thought such an arrangement con- 
trary to the nature of partnership, 
but Servius Sulpicius, whose opinion 
has prevailed, held that such a part- 
nership was so far from invalid that 
a partnership might be formed on 
the terms that a partner should 
have a share in the gains and none 
in the losses, if the value of his 
services made such an arrangement 
fair. It is certain that a partnership 
may be formed on the terms that 
one partner shall contribute all the 
capital and that the gains shall be 
divided equally, for a man’s services 
may be equivalent to capital. 

§ 150. If no agreement has been 
made as to the division of the profit 
and loss, it must be in equal shares. 
If the shares are expressed in the 
event of profit but not in the event 
of loss, the loss must be divided 


400 


fuerint, uelut in lucro, in altero 
uero omissae, in eo quoque quod 
omissum est, similes partes erunt. 
$ 151. Manet autem societas eo 
usque, donec in eodem consensu 
perseuerant. at cum aliquis renun- 
tiauerit Societati, societas soluitur. 
sed plane si quis in hoc renun- 
tiauerit socletati, ut obueniens ali- 
quod lucrum solus habeat, ueluti 
si mihi totorum bonorum socius, 
cum ab aliquo heres esset relictus, 
in hoc renuntiauerit societati, ut 
hereditatem solus lucri faciat, coge- 
tur hoc lucrum communicare. i 
quid uero aliud lucri fecerit quod 
non captauerit, ad ipsum solum 
pertinet. mihi uero quidquid om- 
nino post renuntiatam societatem 
adquiritur, soli conceditur. 


$ 152. Soluitur adhuc societas 
etiam morte socii, quia qui socie- 
tatem contrahit, certam personam 
sibi eligit. 


$ 153. Dicitur etiam capitis de- 
minutione solui societatem, quia 
ciuili ratione capitis deminutio 
morti coaequatur; sed utique si 
adhuc consentiant in societatem, 
noua widetur incipere societas. 

$154. Item si cuius ex sociis 
bona publice aut priuatim ueni- 
erint, soluitur societas. sed haec 
quoque societas de qua loquimur, 
id est quae consensu contrahitur 
nudo, iuris gentium est, itaque 
inter omnes homines naturali ra- 
tione consistit. 


DE OBLIGATIONIBUS. 


(1n. $$ 148-154. 


in the same proportions as the 
profit. 


$ 151. Tbe continuance of part- 
nership depends on the continuing 
consent of the members: the renun- 
ciation of one dissolves the partner- 
ship. If, however, the object of a 
partner in renouncing the partner- 
ship is to monopolise some accruing 
gain; if, for instance, a partner in 
all goods succeeds to an inheritance 


and renounces the partnership in 


order to have exclusive possession 
of the inheritance, he will be com- 
pelled to divide this gain with his 
partners; but what he gains un- 
designedly he keeps to himself; and 
his partner always has exclusive 
benefit of whatever accrues to him 
after the renunciation. 

$ 152. Dissolution of partnership 
ig also produced by the death of 
& partner, for he who enters into 
partnership elects & determinate 
person with whom he is willing to 
be partner. 

$ 153. Loss of status also deter- 
mines partnership, because in the 
civil law loss of status is regarded 
as equivalent to death ; but if the 
members still consent to be partners, 
8 new partnership commences. 

$ 154. Again, the sale of all the 
property of one of the partners, 
whether by the state or by private 
creditors, dissolves the partnership. 
These remarks apply to private 
partnership, which is formed by 
mere consent, belongs to gentile 
law, and being a contract of natural 
law is within the capacity of all 
men: {whereas societas publicano- 
rum is not a consensual contract, 
is confined to Roman citizens and 
is governed by civil law. Cf. Stude- 
mund. | 


§ 148. In the absence of express convention a partnership is 
limited to gains by commercial transactions (universorum quae ex 





nr. $$ 155-162. ] DE MANDATO. 401 


quaestu veniunt) and excludes gains by inheritance, devise, dona- 
tion. A remarkable incident of unlimited partnership (universorum 
bonorum) was the transmutation of property operated by mere con- 
vention without delivery, Dig. 17, 2, 1, 1. *In partnership of all 
goods, the property of all the members becomes forthwith common, 
a constructive delivery being implied in the absence of actual 
delivery? This rule was not applied to other forms of partnership. 

§ 149. Although a partner might be exempt by the terms of the 
eonvention from any share in the losses, yet a convention that a 
partner should have no share in the gains was called a leonine con- 
vention, and being devoid of consideration could not be enforced, 
Dig. 17, 2; 29, 2. ‘Aristo records the decision of Cassius that a 
partnership on the terms that one should take all the profite and 
another bear all the loss, which he called a leonine partnership, is 
not binding, and Ulpian concurs.’ 

$153. Of the three kinds of capitis minutio, maxima, media, 
and minima, that is to say, loss of libertas, loss of civitas, loss of 
domestic status, only capitis minutio maxima and media operate a 
dissolution of partnership, Dig.17, 2; 65,11. * Partnership passes 
neither to the heir nor to the adrogator of a partner, otherwise it 
might be involuntary; but an independent person who becomes 
dependent by adrogation, and a filiusfamilias who becomes inde- 
pendent by enfranchisement, continue partners.’ 

§ 154. The forced sale of a person’s whole estate might be the 
result of either a criminal or a civil proceeding, either condem- 
nation for crime or insolvency, and in the latter case for the benefit 
either of the State or of private creditors.  Damnatione bona 
publieantur cum aut vita adimitur aut civitas aut servilis conditio 
irrogatur, Dig. 48, 20,1. ‘Condemnation forfeits all a criminals 
goods to the treasury, if it deprives of life, or involves loss of civitas 
(capitis minutio media), or loss of liberty (capitis minutio maxima) 

Confiscation (publicatio) under it& ancient name of sectio bono- 
rum, has already, 8 § 80, been mentioned. The quaestors of the 
treasury were sent into possession; the sale, which was publicly 
advertised (proseriptio), took place under the spear (sub hasta), the 
symbol of absolute dominion, and vested in the purchaser (sector) 
quiritarian ownership. 

DE MANDATO. 

$155. Mandatum consistit, siue $155. Agency may contemplate 
nostra gratia mandemus siue aliena. the benefit either of the principal or 

pd 


402 


itaque siue ut mea negotia geras, 
giue ut alterius, mandauerim, con- 
irahitur mandati obligatio, et in- 
uicem alter alteri tenebimur in id, 
quod uel me tibi uel te mihi bona 
fide praestare oportet. 


$156. Nam si tua gratia tibi 
mandem, superuacuum est manda- 
tum; quod enim tu tua gratia fac- 
turus sis, jd de tua sententia, non 
ex meo mandatu facere debes, ita- 
que si otiosam pecuniam domi te 
habentem hortatus fuerim, ut eam 
faenerares, quamuis eam ei mutuam 
dederis a quo seruare non potueris, 
non tamen habebis mecum mandat 
actionem. item si hortatus sim, wé 
rem aliquam emeres, quamwis non 
expedierit tibi eam emisse, non ta- 
men tibi mandati tenebor. et adeo 
haec ita sunt, ut quaeratur an 
mandati teneatur qui mandauit 
tibi, ut Titio pecuniam faenerares. 
[sed] Seruius negauit; nec magis 
hoc casu obligationem consistere 
putauit, quam si generaliter alicui 
mandetur, uti pecuniam suam fae- 
neraret. (sed) sequimur Sabini 
opinionem contra sentientis, quia 
non aliter Titio credidisses, quam 
si tibi mandatum esset. 


$157. Illud constat, si quis de 
ea re mandet quae contra bonos 
mores est, non contrahi obliga- 
tionem; ueluti si tibi mandem, ut 
Titio furtum aut iniuriam facias. 

$ 158. Item si quid post mortem 
meam faciendum (mihi) mandetur, 
inutile mandatum est, quia gener- 
aliter placuit ab heredis persona 
obligationem incipere non posse. 

$ 159. Sed recte quoque con- 
summatum mandatum si, dum ad- 
huc integra res sit, reuocatum 
fuerit, euanescit. 

§ 160. Item si adhuc integro 
mandato mors alterutrius alicuius 
interueniat, id est uel eius qui 


DE OBLIGATIONIBUS. 


[ur. $$ 155-162. 


of a stranger; that is to say, your 
undertaking at my request to trans- 
act my business or the business of 
& third person will create an obli- 
gation between us, and make us 
mutually liable to satisfy the de- 
mands of good faith. 

§ 156. But if I recommend you 
to perform anything for your own 
exclusive advantage, there 1s no re- 
lation of agency, for you ought to 
act on your own judgment and not 
by my commission. If you tell me 
that you have money lying in your 
cash-box, and, on my advice to lend 
it at interest, you lend it to a per- 
son from whom you cannot recover 
it, you will have no action of man- 
date against me: or if I recommend 
you to buy, and you lose by buy- 
ing, I am not liable to be sued in 
action of mandate. So settled is this, 
that it has been questioned, whether 
mandate can be brought on a specific 
recommendation to lend to Titius; 
Servius holds that no obligation 
arises in this case any more than 
in that of a general recommenda- 
tion to lend money, but we adopt 
the opposite opinion of Sabinus, on 
the ground that the money would 
not have been lent to Titius, if there 
had been no recommendation. 

$ 157. It is clear that an insti- 
gation to do an unlawful act, to 
steal, for instance, or commit an 
assault, gives the agent no right of 
action against the instigator. 

$ 158. A commission to be exe- 
cuted after the death of the agent 
is invalid by the general rule that 
8 successor cannot be the original 
subject of an obligation. 

$159. A valid authority is an- 
nulled by revocation before a com- 
mencement of execution. 


$160. So the death of either the 
principal or the agent before a com- 
mencement of execution is a revo- 





m. $$ 165-162. ] 


mandawerit uel eius gui mandatum 
susceperit, soluitur mandatum. sed 
utilitatis causa receptum est, ut si 
mortuo eo qui mihi mandauerit, 
ignorans eum decessisse executus 
fuero mandatum, posse me agere 
mandati aotione; alioquin iusta et 
probabilis ignorantia damnum mihi 
adferret. et huic simile est quod 
plerisque placuit, si debitor meus 
manumisso dispensatori meo per 
ignorantiam soluerit, liberari eum, 
cum alioquin stricta iuris ratione 
non posset liberari eo quod alti 
soluisset quam cui soluere deberet. 


$ 161. Cum autem is cui recte 
mandauerim, egressus fuerit man- 
datum, ego quidem eatenus cum eo 
habeo mandati actionem, quatenus 
mea interest inplesse eum manda- 
tum, si modo inplere potuerit; at 
ille mecum agere non potest. ita- 
que si mandauerim tibi, ut uerbi 
gratia fundum mihi sestertiis ¢ 
emeres, tu sestertiis CL emeris, non 
habebis mecum mandati actionem, 
etiamsi tanti uelis mihi dare fun- 
dum, quanti emendum tibi man- 
dassem ; idque maxime Sabino et 
Cassio placuit. quodsi minoris 
emeris, habebis mecum scilicet ac- 
tionem, quia qui mandat, ut C mi- 
libus emeretur, is utique mandare 
intellegitur, uti minoris, si posset, 
emeretur. 


§ 162. In summa sciendum (est, 
quotiens) aliquid gratis ( facten- 
dum) dederim, quo nomine si mer- 
cedem statuissem, locatio et con- 
ductio contraheretur, mandati esse 
actionem ; ueluti si fulloni polienda 
curandaue uestimenta (dederim) 
aut sarcinatori sarcienda. 


DE MANDATO, 


403 


cation of a power: but equity re- 
quires that, if after the death of a 
principal and without having notice 
of his decease an agent execute his 
commission, he may recover against 
the successor of the principal in an 
action of mandate; for otherwise 
an unavoidable ignorance would be 
visited by a legal penalty. Similar 
to this is the rule which is sup- 
ported by the weight of authority, 
that a debtor who pays a manu- 
mitted steward without notice of 
his manumission is discharged of 
liability; though by the strict letter 
of the law he is not discharged, be- 
cause he has not paid the person 
whom he was bound to pay. 

§ 161. If an agent deviates from 
his instructions, he may be sued for 
the amount which his principal loses 
by the non-execution of the instruc- 
tions, if the execution was possible; 
and he will have no right of action 
against the principal. So if I com- 
mission you to purchase an estate 
for, say, a hundred thousand ses- 
terces, and you purchase for a hun- 
dred and fifty thousand, you will 
have no action of mandate against 
me although you are willing to 
convey to me for the price at which 
I authorized you to buy: so Sabinus 
and Cassius have decided. If you 
buy it for less, you will have a right 
of action against me, for a direction 
to buy for a hundred thousand ses- 
terces is regarded as an implied 
direction to buy, if possible, for any 
smaller sum. 

§ 162. Finally, the delivery of 
material to be wrought or fashioned 
gratuitously, where if a remunera- 
tion had been fixed there would 
have been a letting and hiring, is 
ground for an action of mandate 
against the bailee; the fuller, for 
instance, who receives clothes to be 
cleaned or bleached, or the tailor 
who receives them to be mended, 


pd2 





404 DE OBLIGATIONIBUS. [1rr. $$ 155—162. 


In the contract of agency (mandatum) the principal is called 
dominus or mandator, the agent procurator or mandatary. 

We have already mentioned, when treating of the verbal con- 
tract of stipulation, that a guaranty was often given by the con- 
sensual contract of mandate, 8 §§ 110, 127, comm. Such a man- 
date is called MANDATUM QUALIFICATUM, or Mandatum Credendi. 
We have the principle explained in $ 156: he who recommends a 
third person as of good credit is bound to make good his representa- 
tion and to indemnify another who sustains damage from giving 
eredit on the faith of that representation. So by English law a 
person not interested in a transaction who makes a false and 
fraudulent misrepresentation which induces another to trust and 
contract with a third person is answerable for the loss occasioned 
by his misrepresentation. 

As such a representation was in effect a guaranty, and to allow 
an action on a verbal misrepresentation would avoid the Statute of 
Frauds, which requires a guaranty to be reduced to writing, Lord 
Tenterden’s Act, 9 George IV, chapter 14, enacted that no action 
shall be brought whereby to charge any person upon any repre- 
sentation or assurance concerning the character, credit, or ability 
of any other person, to the intent that such other person may 
obtain money or goods upon credit, unless such representation or 
assurance be made in writing, signed by the party to be charged 
therewith. 

Another case in which a guarantor and guarantee stand in the 
relation of mandant and mandatary is DELEGATIO. Tua et mandantis 
gratia intervenit mandatum, si mandet tibi, ut ipsius periculo 
stipuleris ab eo quem tibi deleget in id quod tibi debuerat, Inst. 3, 
26,2. ‘ Both the agent and the principal are beneficially interested 
in a mandate if the principal directs the agent at the risk of the 
principal to take a verbal bond from a debtor of the principal in 
discharge of a debt due from the principal to the agent.’ Gaius, 
2 § 38, ‘The transfer of a debt requires that on the order of 
the transferror the transferree should stipulate payment from the 
debtor, whereupon the debtor is discharged of liability to the trans- 
ferror and becomes bound to the transferree, which change is called 
NOVATION.” 

The relations that may subsist between the three parties to a 
Delegatio (Delegans or the Delegator, Delegatus, and Creditor or 
the Delegatee), are very varied : 


im. $$ 155-162.] DE MANDATO. 405 
(1) The Delegans may have towards the Delegatee solvendi 


animus, credendi animus, or donandi animus. 

a. When the Delegator is indebted to the Delegatee and has 
solvendi animus, Delegatus is expromissor of Delegans, 
and the debt of Delegans is novated. Solvit et qui reum 
delegat, Dig. 16, 1, 8, 8. 

6. But Delegator may have contrahendi animus: and then 
there is no debt of Delegator to be novated, and Delegatus 
is not Expromissor. Si me... mutuam pecuniam roga- 
veris, et ego meum debitorem tibi promittere jusserim . . . 
Dig. 12, 32. 

c. Or Delegator may have donandi animus: then again there 
is no debt of Delegator to be novated, and Delegatus is 
not Expromissor. Si debitorem meum tibi donationis 
causa promittere jussi . . . Dig. 29, 5, 21, 1. 

(2) a. In the same way Delegatus may either be indebted to 
Delegator and have solvendi animus, as is assumed in 
some of the texts above quoted : 

b. or he may have credendi animus, Cod. 8, 42, 5: 

c. or he may have donandi animus : Ut mihi donares, credi- 
tori meo, delegante me, promisisti, Dig. 89, 5, 21. 

If both Delegans was indebted to the Delegatee and Delegatus 
to Delegans, there are two novations: if only one was indebted 
there is one novation, if neither was indebted, the Delegation in- 
volves no novation. Assignatio is another use of Mandate. 

In Assignatio Assignans orders Assignatus not, as in Delegatio, to 
promise but to pay a sum to the Assignatee. The relations between 
the parties to an Assignatio are as various as those we have indi- 
cated between the parties to a Delegatio. Until payment, Assignans 
has a power of revoking the order, and Assignatus may disobey the 
order: hence the maxim: Assignation is not payment. But when 
payment is once made it has an extinctive effect like that of simple 
solutio. Baron, Pandekten, § 307. 

Dig. 46, 2, 11, pr., seems to contemplate a double delegation : 
ie. a proceeding in which the ultimate promisee is not the person 
whom we have called Delegatarius or Delegatee but a fourth per- 
son, Delegatarius of Delegatarius primus, to whom Delegatarius 
primus may have the intention solvendi or credendi or donandi. 

If Delegatarius primus is indebted to this fourth person, this 
debt will be novated: so that if Delegatus was indebted to 


406 DE OBLIGATIONIBUS. [u1. $$ 155-162. 


Delegator and Delegator to Delegatarius primus, there are three 
novations, 

Similarly Assignatio may be double: the ultimate payee may be 
a fourth person, Ássignatarius of Assignatarius primus, a creditor, 
borrower, or donee of the first Ássignatarius; if he is not, as in the 
following example, a mere hand or instrument (son, slave, or agent) 
by whom the first Assignatarius receives payment. 

We know that Cicero pater supplied Cicero filius when a student 
at Athens with money by the mediation of his friend Atticus who, 
as publican, had debtors in Greece. The procedure would be as follows: 

Atticus (A, assignator) at the request of Cicero pater (C, assig- 
natarius primus), orders Graeculus (B, assignatus) to pay to Cicero 
filius (D, assignatarius secundus) what Atticus owes to Cicero pater. 
The payment by Graeculus to Assignatarius secundus, D, discharges 
the debt of Graeculus to Atticus, the debt of Atticus to Cicero 
pater, and if D were an independent person, creditor of Cicero pater, 
the debt of Cicero pater to D. 

Mandate might be employed to operate a virtual transfer of 
obligation, without Delegation or Novation, which, besides extin- 
guishing the securities of the prior obligation, was not always 
practicable as it required the concurrence of the debtor, by czssto 
ACTIONUM, or Mandatum Agendi—the mere transfer of the nght of 
action (mandare, cedere, praestare actiones). The transferror made 
the transferree his processual representative and that on the trans- 
ferree’s own account (procurator in rem suam): that is, gave him 
@ procuration or power of attorney, which enabled him to sue either 
entirely in the name of the transferror, or, employing the formula 
Rutiliana, partly in the name of the transferror and partly in the 
name of the transferree, naming the transferror in the intentio and 
the transferree in the condemnatio, 4 § 35: and in either case 
entitled him to retain whatever sum he recovered, 2, 38. In 
Cessio the three parties are called Cedens, Cessus, Cessionarius. 
After certioratio, or denuntiatio, to Cessus, Cedens was incapable 
of further Cessio, Novatio, Acceptilatio, Solutio. Kuntze, § 606. 

In the later period of the law the transferree of an obligation 
might even sue in his own name on the Cautio of a debtor by an 
actio utilis, i.e. a fictitious action feigning that the plaintiff is 
heres of the creditor (formula Serviana) or, more probably, without 
any fiction by formula in factum concepta. Vangerow, § 574. 
Here we may seem to have in full bloom the institution of nego- 





m. $$ 155-162.] DE MANDATO. - 407 


tiable paper, that is, written promises to pay, transferable from 
person to person, and giving the transferree a right to sue in his 
own name. 

In the Roman practice, however, we are far from a complete 
system of transferable obligation. The ceded or assigned obliga- 
tion was never completely detached from the person and liabilities 
of the preceding creditor. The cessionary or assignee was open to 
all the exceptions that might have been opposed to the original 
creditor: e.g. to compensatio, or reduction by the amount of a 
counterclaim ; to exceptio non numeratae pecuniae, or plea of want 
of consideration : and to exceptio of lex Anastasiana, a statute which 
prohibited any vendee of a debt from recovering, out of its nominal 
amount, more than the price at which it was actually purchased. 
And similar objections might be raised in respect of any creditor 
intermediate between the original assignor and the final assignee. 
The complete transferability [singular succession] of obligations was 
unknown to jurisprudence until modern legislation gave validity to 
contracts with an incerta persona, i.e. with a person unascertained 
except as member of a class; in other words, to papers payable to 
the Holder or Bearer, 2 § 259, comm. 

In such papers, which are subjects of property or ownership, the 
incorporeal obligation is, as it were, incorporated, and Obligation 
is transformed into Dominion. We have instances of such papers 
(called negotiable) in Promissory Notes, Bills of Exchange, State 
obligations (documents expressing a claim against a government 
for a certain amount of capital debt, and having annexed to them 
coupons, representing claims of periodic interest), and Debentures 
of industrial corporations (certificates of Shares in such industrial 
companies, though similar to Debentures as entitling the Holder 
to certain dividends or shares in the profits, are foreign to our 
present purpose, because they essentially and originally relate to 
Property or jus in rem, not to Obligation or jus in personam, the 
Shareholders being co-proprietors). By the use of such negotiable 
papers the transferability of Obligation is raised to a level with the 
transferability of Dominion, Savigny, Obligationenrecht, 62—70. 

$161. The doctrine of Sabinus that if an agent exceed his 
powers in the price at which he purchases, the principal is not 
bound for the purchase money even after deduction of the un- 
authorized excess, was overruled, as we are informed by Jus- 
finian. Inst. 3, 26, 8. 


408 DE OBLIGATIONIBUS. [rr. §§ 155-162. 


6162. It is only in exceptional cireumstances, such as those 
here mentioned, that the contract of mandatum can fall under the 
head of Bailment. 

The gratuitous character of mandatum is rather nominal than 
real. The professor of a liberal art could recover a remuneration 
which, however, was disguised under the name of salarium or 
honorarium, and could not be sued for by action of mandate before 
an ordinary judge, but was a matter for the extraordinary cogni- 
zance of the praetor or chief minister of justice. Adversus eum 
cujus negotia gesta sunt, de pecunia quam de propriis opibus vel ab 
aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris 
potes experiri. De salario autem quod promisit, apud praesidem 
provinciae cognitio praebebitur, Cod. 4, 25, 1. ‘The employer 
whose business you transacted, as to the moneys out of your own 
pocket or taken up at a loan which you spent for his use, may be 
forced by action of mandate to reimburse you the principal and 
interest. The salary which he promised must abide the decision 
of the president of the province) Under the liberal professions are 
included advocates, physicians, oculists, aurists, dentists, copyists 
(librarii) short-hand writers (notarii) accountants, schoolmasters, 
nurses, rhetoricians, grammarians, geometers, land surveyors. The 
professors of philosophy and of civil law may receive fees volun- 
tarily offered, but their functions are so exalted that it would be 
unseemly in them to ask for à pecuniary remuneration even at the 
tribunal of the praetor, Dig. 50, 18, 1. 

The law of agency or representation was only slowly developed 
in Roman jurisprudence, see 2 $ 95, comm. Originally the cases in 
which a contractor could bind a principal to his contractee or the 
contractee to a principal were confined to contracts by persons 
under power, that is to say, sons or slaves. 

The right acquired by a son or slave was acquired for the father 
or master, 1 § 163, and if the contract was made by the order or 
for the use of the father or master, he was suable by the contractee, 
4 §§ 70-74. But in other cases the benefit or burden of a contract 
was confined to the parties contracting. The procurator or agent 
contracted with a third party in his own name: the third party 
recovered his dues from the agent by an action on the contract: 
and the agent would in turn recover his from the principal by an 
action on the mandate. There was no immediate relation between 
the third party and the principal, and any action in which the third 


m. $$ 155-162.] QUASI INSTITORIA. 409 


party sued the prineipal or vice versa, could have only resulted 
from CESSIO ACTIONUM, i.e. a transfer of obligations between the 
agent and principal, or the agent and the contractee. 

However, in process of time the law recognized the appointment 
of a cognitor or representative of a party to a suit, and such 
cognitor was to all intents and purposes identified with his 
principal, 4 $ 88. 

Furthermore, the manager of a shop (institor), and captain of a 
ship were enabled by praetorian legislation to bind the employer 
and shipowner (exercitor) to third parties by means of the actions 
institoria and exercitoria, 4 § 71. This was gradually extended so 
as to allow to all persons who contracted with an agent a right of 
action, called quasi institoria, against his employer. 

The praetors went even beyond the precedent furnished by insti- 
tona, and allowed to principals a converse or obverse immediate 
right of action against third parties who had contracted with 
agents. Quod procurator ex re domini, mandato non refragante, 
stipulatur, invito procuratore dominus petere potest, Dig. 8, 3, 68. 
* When an agent, dealing with the interests of his principal and in 
accordance with his instructions, makes a contract, the consent 
of the agent is not required to entitle the principal to sue^ When 
the praetors, proceeding by timid and hesitating steps, had reached 
this point, the Roman law of agency had become identical with 
the system we find established in modern Europe. Under this 
system it is a general rule, that when an agent is duly constituted 
and discloses the name of his principal, so as to enable the party 
with whom he deals to have recourse to the principal, and contracts 
in his name and on his behalf, and does not exceed his authority, 
the principal is responsible and not the agent. The only reservation 
to be made is the following : In contracts governed by Jus gentium 
the relation of Agency was recognized in its fullest development : 
in Formal contracts, or contracts governed by the Civil law (of 
which in the last period of Roman Jurisprudence the only surviving 
instance was Stipulatio), the primitive law, ignoring Agency, had 
so far left its traces, that the principal could not sue or be sued on 
the contracts of his Agent by actio Directa, but only in a deri- 
vative capacity as cessionary by actio Utilis; that is, by a formula 
involving, by permission of the judicature, a certain amount of 
Fictitious supposition, or formula in faetum concepta. See above, 
$ 108 and 4 § 34, 


410 DE OBLIGATIONIBUS. (ar. §§ 155-162 


According to some recent writers the above distinction between 
contracts of jus gentium and jus civile is not well founded, only 
an actio utilis being maintainable in either case. See Windscheid, 
Pandekten, IT. § 329. 

After explaining obligations founded on contract, Justinian, Inst. 
3, 27, treats of a miscellaneous group of obligations which are neither 
founded on contract nor on delict, and which, as the circumstances 
in which they arise resemble more or less the circumstances of one 
or other of the legal conventions, are denominated by the name of 
obligations quasi ex contractu. These demand from us a brief notice. 

Three of them, namely, those which ground the actions by or 
against a tutor, by or against a curator, by or against an unau- 
thorized agent (negotiorum gestor), clearly resemble obligations 
founded on the contract of mandate. The ward and minor stand 
to the tutor and curator nearly in the relation of principal and 
agent, although they are legally incompetent to give an authority 
(mandatum) or confer a power of administration. A person who, 
in the absence and without the knowledge of another, officiously 
interfered to protect his interests (voluntarius procurator) incurred 
hability and acquired rights against the person in whose affairs he 
interfered. English law does not recognize a title to compensation in 
the case of officious interference, unless we find a parallel in the rights 
of salvors in the case of property lost or endangered on the ocean. 

Three other obligations quasi ex contractu, those that are en- 
forced by an action for division of common property between tenants 
in common (communi dividundo), by action for partition of an in- 
heritance between co-successors (familiae erciscundae), by an action 
for demarcation of boundaries between adjoining landowners (fini- 
um regundorum), resemble the obligations arising in partnership. 
These actions are distinguished from all others by the adjudicatio, 
a clause in the formula which empowered the judex by the mere 
effect of his judgment to operate a transmutation of property. 
They are called mixed actions by Ulpian, because both parties are 
equally plaintiff and defendant, Dig. 44, 7; 87,1; by Justinian, 
because they are both real and personal, that is, embrace questions 
both of ownership and obligation ; but were regarded by the jurists 
as properly personal actions, because they contemplate a transfer of 
property and condemnation of one or other of the parties, in case 
of inequality of apportionment, in pecuniary damages by way of 
compensation, 


mi. §§ 163-167 a.] INSTRUMENTS OF OBLIGATION. 411 


The obligation of a heres to a legatee, enforceable by actio legati 
(condictio ex t: stamento), is another case of obligation qrasi ex 
contractu. The aditio of the hereditas may be regarded as a 


promise to satisfy the bequests. 


§§ 35, 36. 


Aditio is called Obligatio, 2 


Again, money paid by mistake or without consideration (indebi- 
tum solutum) created an obligation to repay, enforceable by indebiti 
soluti condictio, which closely resembles the obligation created by 


the contract of mutuum, see § 91. 


PER QUAS PERSONAS NOBIS OBLIGATIO ACQUIRATUR. 


$ 163. Expositis generibus obli- 
gationum quae ex contractu nas- 
cuntur, admonendi sumus adquiri 
nobis non solum per nosmet ipsos, 
sed etiam per eas personas quae in 
nostra potestate manu mancipioue 
sunt. 

$164. Per liberos quoque ho- 
mines et alienos seruos quos bona 
fide poesidemus, adquiritur nobis, 
sed tantum ex duabus causis, id est 
si quid ex operis suis uel ex re 
nostra adquirant. 


$165. Per eum quoque seruum 
in quo usumfructum habemus, si- 
militer ex duabus istis causis nobis 
adquiritur. 

§ 166. Sed qui nudum ius Qui- 
tritium in seruo habet, licet dominus 
sit, minus tamen iuris in ea re 
habere intellegitur quam usufruc- 
tuarius et bonae fidei possessor. 
nam placet ex nulla causa ei ad- 
quiri posse; adeo ut etsi nomina- 
tim ei dari stipulatus fuerit seruus, 
mancipioue nomine eius acceperit, 
quidam existiment nihil ei adquiri. 


$167. Communem seruum pro 
dominica parte dominis adquirere 
eertum est; excepto eo quod uni 
nominatim stipulando aut mancipio 
accipiendo illi soli adquirit, uelut 


$163. Having thus classified 
obligations produced by contract, 
we remark that obligations may be 
acquired not only by our own con- 
tracts, but also by the contracts of 
persons in our power, in our hand, 
in a state of mancipation to us. 

$164. Freemen, also, and the 
slaves of another person, acquire 
for the person who possesses them 
in bona fides; only, however, in 
two circumstances, that is to say, 
when they acquire by their own 
labour, or in dealing with the pro- 
perty of the bona fide possessor. 

$ 165. A usufructuary slave ac- 
quires for the tenant for life under 
the same conditions. 


$ 166. The owner of the naked 
quiritary property in a slave has 
less right in his acquisitions than 
the tenant for life or bona fide 
possessor; for under no circum- 
stances do the acquisitions of the 
slave enure to his benefit; and 
even when expressly named by the 
slave in a stipulation or mancipa- 
tion, according to some authorities, 
the nude proprietor acquires no 
right. 

§ 167. A common slave acquires 
for all his proprietors in the propor- 
tion of their property, unless he 
names one exclusively in a stipula- 
tion or mancipation, in which case 





412 


cum ita stipuletur TITIO DOMINO 
MEO DARI SPONDES? aut cum ita 
mancipio acciplat HANC REM EX 
IVBE QVIRITIVM L. TITII DOMINI 
MEI ES8F AIO EAQVE EI EMPTA 
ESTO HOC AERE AENEAQVE LIBRA. 


$ 167a. Illud quaeritur an quod 
domini nomen adiectum efficit, 
idem faciat unius ex dominis iussum 
intercedens. nostri praeceptores 
perinde ei qui iusserit soli adquiri 
existimant, afque si nominatim ei 
soli stipulatus esset seruus manci- 
pioue accepisset. diuersae scholae 
auctores proinde utrisque adquiri 
putant, ac si nullivs iussum inter- 
uenisset. 


DE OBLIGATIONIBUS. 


[rrx. $$ 163-167 a. 


he acquires for him alone. For in- 
stance, if he stipulates thus: ‘Dost 
thou promise to convey to Titius, 
my master?’ or, when he takes 
by mancipation, thus: ‘This thing 
by quiritary law I declare to be 
the property of Lucius Titius, my 
master, and for him be it purchased 
by this bronze ingot and this scale 
of bronze.’ 

$ 167a. It is a question, whether 
the same effect is produced by the 
exclusive order of one of the mas- 
ters, as by the exclusive mention of 
the name of one. My school main- 
tain that the sole orderer is the sole 
acquirer, just as when one alone is 
named by the slave in a stipulation 
or mancipation; the other school 
maintain that all the owners ac- 
quire, just as if there had been no 
order. 


6 163. Justinian enacted, as we have seen, that while the pecu- 





lium profectitium of the filiusfamilias, that is, the peculium which 
he derived from the grant of his father, remained the property of 
the father; and while in respect of peculium castrense and quasi 
castrense the son was paterfamilias, or absolute owner; in respect 
of peculium adventitium, that is, other peculium derived from any 
other source than the estate of the father, only the usufruct or life 
estate should vest in the father, the property or reversion remaining 
in the son. In respect of the obligations aequired by the son, the 
same principle was to prevail, Inst. 3, 28, pr. ‘The benefit of the 
obligations acquired by a son shall be divided, as his property is by 
our constitution, into reversion and usufruct; so that the proceeds 
of any action shall vest in the father for life, and in the son in 
reversion, the whole right of action vesting in the father, according 
to the distinctions expressed in the statute.’ 

§ 167 a. Justinian decided this question in favour of the doctrine 
of Sabinus, Inst. 3, 28, 13. 

To the persons through whom an obligation can be acquired 
might be added the procurator in the later stage of the law, as 
soon as the principal was allowed to sue on the contracts of the 
agent without the agent’s consent or transfer of his right of action. 
Cf. § 162, comm. 


un. § 168-181.] Q. M. OBLIGATIO TOLLATUR. 


413 


QUIBUS MODIS OBLIGATIO TOLLATUR. 


$ 168. Tollitur autem obligatio 
praecipue solutione eius quod de- 
betur, unde quaeritur, si quis con- 
sentiente creditore aliud pro alio 
soluerit, utrum ipso iure liberetur, 
quod nostris praeceptoribus placwzt, 
&n ipso iure maneat obligatus, sed 
aduersus petentem exceptione doli 
mali defendi debeat, quod diuersae 
scholae auctoribus uisum est. 


$ 169. [tem per acceptilationem 
tolliturobligatio. acceptilatioautem 
est uelut: imeginaria solutio; quod 
enim ex uerborum obligatione tibi 
debeam, id si uelis mihi remittere 
poterit sic fieri, ut patiaris haec 
uerba me dicere QVOD EGO TIBI 
PROMISI, HABESNE ACCEPTVM} et tu 
respondeas HABEO. 


$ 170. Quo genere, ut diximus, 
(tantum eae obligationes soluuntur, 
quae ex werbis consistunt,) non 
etiam ceterae ; consentaneum enim 
uisum est uerbis factam obliga- 
tionem posse alzis uerbis dissolui. 
sed id quod ex alia causa debeatur, 
potest in stipulationem deduci et 
per (acceptilationem dissolut. 


$ 171. Quamuis autem dixerimus 
contineri) acceptilationem imagi- 
naria solutione, tamen mulier sine 
tutoris auctoritate acceptum facere 
non potest, cum alioquin solui ei 
sine tutoris auctoritate possit. 


$172. Item quod debetur, pro 


$168. Extinction of an obligation 
is effected chiefly by performance of 
the thing that is owed. It is dis- 
puted, when the creditor consents 
to the substitution of a different 
performance whether there is a dis- 
charge of the original obligation, as 
my school consider, or there is a 
continuance of the original obliga- 
tion, though against a demand a 
counteractive defence (an averment 
of an independent counter obliga- 
tion) may be made by the excep- 
tion of fraud, as the other school 
maintain. 

$ 169. Acceptilation is another 
mode of extinguishing an obliga- 
tion. Acceptilation is an imaginary 
payment by a solemn form of 
words. Ifa creditor is willing to 
release & debt created by verbal 
contract, the object may be accom- 
plished by the debtor interrogating 
him in these terms: ‘ That which I 
promised thee hast thou received 1' 
and the creditor answering: ‘I 
have received it.' 

$ 170. This process, as I said, 
only discharges obligations that 
arise from verbal contract, and 
no others; for logic seems to dic- 
tate that where words can bind, 
words may also loose. However, 
a debt due from any other cause 
may be transformed into a debt 
on stipulation, and released by 
acceptilation. 

$ 171. But notwithstanding our 
statement that acceptilation is 
effected by an imaginary payment, 
& woman without her guardian’s 
authority cannot release by accepti- 
lation, although her receipt of 
actual payment without her guar- 
dian’s authority discharges the 
debtor. 

§ 172. So a debt may be paid in 








414 


parte recte soluitur; an autem in 
partem acceptum fieri possit, quae- 
situm (est)., 

$ 173. Est etiam alia species 
imaginariae solutionis per aes et 
libram. quod et ipsum genus certis 
in causis receptum est, ueluti si 
quid eo nomine debeatur quod per 
aes et libram gestum sit, siue quid 
ex iudicati causa deb(eatur. 


$ 174. Eaque res ita. ag)itur: 
adhibentur non minus quam quin- 
que testes e£ libripens. deinde is 
qui liberatur, ita oportet loquatur 
QVOD EGO TIBI TOT MILIBVS CON- 
DEMNATVS SVM, ME EO NOMINE A 
TE SOLVO LIBEROQVE HOC AERE 
AENEAQVE LIBRA. HANC TIBI LIB- 
RAM PRIMAM POSTREMAMQVE EX- 
PENDO (SECVNDVM) LEGEM PVB- 
LICAM. deinde asse percutit libram 
eumque dat ei a quo liberatur, 
ueluti soluendi causa. 


$ 175. Similiter legatarius here- 
dem eodem modo liberat de legato 
quod per damnationem relictum est, 
ut tamen scilicet, sicut iudicatus 
condemnatum se esse significat, ita 
heres testamento se dare damnatum 
esse dicat. de eo tamen tantum 
potest heres eo modo liberari, quod 
pondere numero constet; et ita si 
certum sit. quidam et de eo quod 
mensura constat tdem existimant. 


$ 176. Praeterea nouatione tolli- 
tur obligatio; ueluti si quod tu 
mihi debeas, a Titio dari stipulatus 
sim. nam interuentu nouae perso- 
nae noua nascitur obligatio et prima 
tollitur translata in posteriorem, 
adeo ut interdum, licet posterior 
stipulatio inutilis sit, tamen prima 
nouationis iure tollatur ; ueluti si 
quod mihi debes, a "Titio post 
mortem eius uel a muliere pupilloue 
sine tutoris auctoritate stipulatus 
fuero, quo casu rem amitto; nam 


DE OBLIGATIONIBUS. 


[nr. $$ 168—181. 


part, but whether it can be released 
in part by acceptilation is a ques- 
tion. 

$ 173. There is another mode of 
imaginary payment, namely, by in- 
got and scale. This also is only 
valid in certain cases, as the release 
of a debt imposed upon a heres by 
a legacy per damnationem in a 
mancipatory will, or of a judgment 
debt. 

$ 174. There must be present 
five witnesses and a holder of the 
scales, and the judgment debtor 
to be released must say these 
words : * Whereas I am condemned 
to thee in so many thousand 
sesterces, that debt I pay and 
discharge by this ingot and balance 
of bronze. This is the first, this the 
last, ingot of bronze that I weigh 
out to thee according to the terms 
of the statute.’ Then he strikes the 
scale with the ingot and gives it to 
the creditor as if in payment. 

$175. Similarly, the legatee re- 
leases the successor from a legacy 
left in the form of condemnation, 
except that whereas the judgment 
debtor recites his condemnation by 
the judgment, the successor recites 
his condemnation by the testament 
of the deceased. A debt can be 
thus discharged only if certain in 
amount and estimated by number 
or weight, or, according to some, by 
measure. 

$176. Novation is another mode 
of extinguishing an obligation, and 
takes place when you owe me a 
sum and I stipulate payment 
thereof from Titius, for the inter- 
vention of a new person gives birth 
to a new obligation, and the first 
obligation ceases, being transformed 
into the second. Sometimes, even 
though the second stipulation is in- 
valid, the first is avoided by nova- 
tion; for instance, if you owe me a 
sum, and I stipulate from "Titius 


nr.$$168-181.] Q. M. OBLIGATIO TOLLATUR. 


et prior debitor liberatur et posterior 
obligatio nulla est. non idem iuris 
est sia seruo stipulatus fuero; nam 
tunc (prior) proinde adhuc obli- 
gatus tenetur, ac si postea a nullo 
stipulatus fuissem. 


$ 177. Sed si eadem persona sit, 
@ qua postea stipuler, ita demum 
nouatio fit, si quid in posteriore 
stipulatione noui sit, forte si con- 
dicio aut dies aut sponsor adiciatur 
aut detrahatur. 

§ 178. Sed quod de sponsore 
diximus, non constat ; nam diuersae 
scholae auctoribus placuit nihil ad 
nouationem proficere sponsoris ad- 
lectionem aut detractionem. 

$179. Quod autem diximus, si 
condicio adiciatur, nouationem fieri, 
sic intellegi oportet, ut ita dicamus 
factam — nouationem, $i condicio 
extiterit ; alioquin si defecerit, durat 
prior obligatio. sed uideamus num 
is qui eo nomine agat, doli mali aut 
pacti conuenti exceptione possit 
summoueri, quia uidetur inter eos 
id actum, ut ita ea res peteretur, si 
posterioris stipulationis extiterit 
condicio. Ser. tamen Sulpicius 
existimauit statim et pendente con- 
dicione nowationem fieri, et si de- 
fecerit condicio, ex neutra causa 
agi posse (et) eo modo rem perire. 
qui consequenter et illud respondit, 
si quis id quod sibi L. Titius deberet, 
a seruo fuerit stipulatus, nouatio- 
nem fieri et rem perire, quia cum 
seruo agi non posset. (sad) in 
utroque casu alio iure utimur. nec 
magis his casibus nouatio fit, quam 
&i id quod tu mihi debeas, a pere- 
grino cum quo sponsus communio 
non est, SPONDES uerbo stipulatus 
sim. ! 


415 


payment thereof after his death, or 
if I stipulate payment thereof from 
a woman or ward without the guar- 
dian's authority, in this case my 
claim is extinguished, for the first 
debtor is discharged, and the second 
obligation is void. The same does 
not hold if I stipulate from a slave, 
for then the former debtor continues 
bound, just as if there was no sub- 
sequent stipulation. 

$177. But when the original 
debtor is the promiror, a second 
stipulation only operates a novation 
if it contains something new; if a 
condition, for instance, or a sponsor, 
or a term is added or omitted. 

§ 178. Respecting the sponsor, 
however, there is a controversy ; for 
the other school hold that novation 
is not operated by & sponsor being 
added or omitted. 

$ 179. The statement that a con- 
dition introduced operates a nova- 
tion must be restricted to mean, 
that a novation is produced if the 
condition is accomplished ; if the 
condition fails the prior obligation 
eontinues in force. However, it 
wil be a question, whether the 
creditor who sues on that obliga- 
iion cannot be repelled by the 
counteracting plea of fraud, or of 
accord and agreement ; and whether 
it was not the intention of the 
parties that the debt should be ir- 
recoverable unless the condition of 
the second stipulation were realized 
[i.e. to release the prior obligation 
in the event of the failure of the 
condition annexed to the subsequent 
stipulation]. ^ Servius Sulpicius 
even held that novation occurs 
immediately, and while the accom- 
plishment of the condition is still 
uncertain; and that, if the condition 
fails, neither obligation can be sued 
upon, and the creditor's claim is 
extinguished ; and, consistently 
herewith, he held that, if the debt 


416 


§ 180. Tollitur adhuc obligatio 
litis contestatione, si modo legi- 
timo iudicio fuerit actum. nam 
tunc obligatio quidem principalis 
dissoluitwr, incipit autem teneri 
reus litis contestatione ; sed st con- 
demnatus sit, sublata litis contesta- 
tione incipit ex causa iudicati teneri. 
et hoc (est) quod apud ueteres 
scriptum est, ante litem contestatam 
dare debitorem oportere, post litem 
contestatam condemnari oportere, 
post condemnationem iudicatum 
facere oportere. 


$181. Vnde fit, ut si legitimo 
iudicio debitum petiero, postea de 
eo ipeo iure agere non possim, quia 
inutiliter infendo DABI MIHI OPOR- 
TERE, quia litis contestatione dari 
oportere desiit. aliter atque si 
imperio continenti iudicio egerim ; 
tune enim nihilo minus obligatio 
durat, et ideo ipso iure postea agere 
possum, sed debeo per exceptionem 
rei iudicatae uel in iudicium de- 
ductae summoueri. quae autem 
legitima iudicia et quae imperio 
continentia (sini), sequenti com- 
mentario referemus. 


DE OBLIGATIONIBUS. 


[mz. $$ 168-181. 


of Lucius Titius is stipulated by 
the creditor from a slave, novation 
takes place, and while the original 
obligation is extinguished, the 
second is void because the slave 
cannot be sued. But in both cases 
the contrary rule prevails, and no 
novation occurs in these cases any 
more than it occurs if an alien, who 
cannot be sponsor, promise pay- 
ment of a debt by the solemn term, 
* spondeo.’ 

§ 180. The extinction of an obli- 
gation is also effected by the com- 
mencement of an action, at least of 
a statutory action [that is to say, an 
action substituted by statute for 
any form of statute-process|. Then 
the original obligation is dissolved, 
and a new obligation is imposed on 
the defendant, by the commence- 
ment of the action. If he is con- 
demned, the second obligation is 
discharged, and a third obligation 
is imposed by the judgment. Hence 
the saying of the old writers, that, 
before action brought, a defendant 
is required by the law to convey; 
after action brought, he is required 
to be condemned ; after condemna- 
tion passed, he is required to satisfy 
the judgment. 

$ 181. Accordingly, after suing 
by statutory action, the extinction 
of the original obligation disables 
me from bringing a second action, 
for the declaration that the de- 
fendant is bound to convey is false, 
as the commencement of the first 
action terminated his obligation to 
convey. It is otherwise if I sued 
at first by an action determining 
with (or, deriving its force from 
the praetorship. Then the origi 
obligation continues, and its non- 
extinction permits me to bring a 
second action; but I may be re- 
pelled by the counteracting plea of 
previous judgment or previous liti- 
gation. What actions are statutory, 


ur. $$ 168-181.] LIBERATIO. 417 


and what determine with (or, derive 
their force from) the praetorship, 
will be explained in the next book 
of these Institutions. 


§ 168. Gaius only considers at present the modes of extinguishing 
an obligation, i.e. the modes whereby an obligation ceases to exist. 
In the next book, 4 § 115, he will treat of the exceptio, that is to 
say, a defence to an action whereby, though the right of the plain- 
tiff continues to exist, it is deprived of its operation by being con- 
fronted with an adverse right of ihe defendant; which defence 
required to be alleged with the permission of the praetor in a 
special clause of the formula called the exceptio. 

Every obligation, as we have seen, 1 § 88, commentary, relates 
to a certain datio, factio, or praestatio; that is to say, the fulfilment 
or satisfaction (solutio) of every obligation will consist in datio, 
factio, or praestatio. 

The doctrine of Sabinus, that a substituted performance with 
the consent of the creditor (in solutum datio) operates the extinction 
of an obligation, was the view that ultimately prevailed. Mani- 
festi juris est, tam alio pro debitore solvente, quam rebus pro 
numerata pecunia consentiente creditore datis tolli paratam obliga- 
tionem, Cod. 8, 48, 17. ‘It is certain that payment by a third 
person, and the conveyance of goods instead of money, with the 
consent of the creditor, discharges an obligation. 

$ 170. Aquilius Gallus, the colleague of Cicero in his praetorship, 
the pupil of Quintus Mucius and teacher of Servius Sulpicius, was 
the inventor of formulas relating to dolus malus, Cic. de Off. 3, 14, 
and a mode of releasing from all obligations by & verbal ceremony, 
Inst. 8, 29, 2. ‘There is a stipulation called Aquilian, whereby all 
obligations are transmuted into a verbal one, and forthwith dis- 
charged by acceptilation. For the Aquilian stipulation operates a 
novation of all pre-existing debts, and is thus expressed: “ What- 
ever thing, on whatever title, thou art or shalt be bound to convey 
to me or to perform for me now or hereafter, absolutely or con- 
ditionally ; whatever thing I have or shall have an action, personal, 
real, or extraordinary, against thee to recover; whatever thing of 
mine thou hast, detainest, possessest, hast possessed, or hast fraudu- 
lently parted with possession of ; whatever sum is the value of all 
these things, that sum dost thou promise to pay me?” so asks 
Aulus Agerius, and Numerius Negidius answers: “I promise.” 

Ee . 





418 DE OBLIGATIONIBUS. [11i. $$ 168—181. 


Then Numerius Negidius asks of Aulus Agerius: “ Whatever I 
have promised thee to-day by the Aquilian stipulation, hast thou 
received it all in full?” and Aulus Agerius answers: “I have, and 
have given thee my release." 

The narrative form (stipulatus est, spopondit, interrogavit) in 
which the transaction is expressed by Justinian, properly belongs, 
not to the stipulation and acceptilation, but to the written memo- 
randum (cautio) in which they are recorded. 

§ 172. It was subsequently an established doctrine that a partial 
release by acceptilation was valid, Dig. 46, 4, 18, 1. 

The release of a legaey would be operated per aes et libram 
[nexi liberatio] because the will containing the bequest was a 
transaction per aes et libram, on the principle that all obligations 
may be released by the process whereby they were contracted. 
Nihil tam naturale est quam eo genere quidquid dissolvere quo 
colligatum est, Dig. 50, 17,35. * Nothing more natural than the 
likeness of the means of binding and of unbinding? Omnia quae . 
jure contrahuntur, eontrario jure pereunt, Dig. 50, 17, 100. ‘To 
every legal form of charging corresponds a legal form of discharg- 
ing. Fere quibuscunque modis obligamur, iisdem in contrarium 
actis liberamur, Dig. 50, 17, 153. ‘To every mode of obligation 
there is an obverse mode of liberation." 

It is not so easy to explain why a judgment debt could only 
be released by the proceeding with the bronze and scales. Perhaps 
it was considered that a judgment being an act of the State could 
only be discharged by another act of the State, and that the nexum 
satisfied this requirement, the witnesses and balance-holder symbol- 
izing the people in assembly, and the declaration of the lex of the 
nexum symbolizing a legislative enactment. 

As there are five modes of contracting an obligation, nexu, 
verbis, literis, re, consensu, there are as many corresponding modes 
of exoneration. Three of these, re, verbis, nexu, have been men- 
tioned. Gaius says nothing of exoneration literis, but it is clear 
that as a debt could be constituted by expensilatio, so it could be 
cancelled by a corresponding accepti relatio. 

A consensual contract, not yet followed by partial execution (re 
nondum secuta, Inst. 3, 29, 4), could be dissolved by a contrary 
convention. Hae obligationes quae consensu contrahuntur contraria 
voluntate dissolvuntur, ibid. ‘ Obligations which consent creates, a 
contrary accord dissolves.’ After a part performance, for instance, 


ur $$ 168-181.] LIBERATIO. 419 


a conveyance of the consideration by one of the parties, the contract 
was not abandoned until the other party had made restitution, 
Cod. 4, 45, 1. 

Not only could the obligation created by consensual contract be 
extinguished by consent, but obligation created by delicet could by 
certain statutes be obliterated by convention.  Legitima conventio 
est quae lege aliqua confirmatur, et ideo interdum ex pacto actio 
nascitur vel tollitur quotiens lege vel senatusconsulto adjuvatur, 
Dig. 47, 10,6. ‘A convention is statutory which derives validity 
from some statute, and grounds or destroys a right of action.’ 
Thus the obligation and action arising out of outrage (injuriarum) 
and theft could be extinguished by pact, in the latter case, by 
enactment of the Twelve Tables. 

§ 176. It seems irrational that an invalid contract should be 
held to operate a novation, but a contract might be valid by Jus 
gentium though invalid at Civil law; and in respect of Novation 
naturalis obligatio was placed on a level with civilis obligatio. 
Novatio est prions debiti in aliam obligationem, vel civilem vel 
naturalem, transfusio atque translatio, hoc est cum ex praecedente 
causa ita nova constituitur ut prior perimatur. . . . Qualiscunque 
igitur obligatio est quae praecessit, novari verbis potest, dummodo 
sequens obligatio aut civiliter teneat aut naturaliter, ut puta si 
pupillus sine tutoris auctoritate promiserit, Dig. 46, 2, 1. ‘ No- 
vation is the transfusion or transfer of the object of a prior debt 
into à subsequent obligation, civil or natural; or the destruction 
of a prior right by the constitution of a second. Every kind of ob- 
ligation can undergo novation by verbal contract, provided that the 
subsequent obligation binds either by law civil or by law natural, as 
the promise of a ward without his guardian's authority. 

§ 177. We have already seen an instance of novation when treat- 
ing of delegatio, §§ 155-162, comm., the satisfaction of a debt by 
substitution of a debtor. The substituted debtor who discharges 
the first is called expromissor, §§ 110-127, comm. 

6 178. We see by Justinian, Inst. 3, 29, 3, that the addition or 
omission of a fidejussor was finally held to operate a novation. 

$ 179. Servius Sulpicius was wrong because novation implies 
a subsequent obligation, but a conditional obligation is really no 
obligation until the condition is realized. So if the prior obligation 
is conditional and the second obligation absolute, the novation is 
not absolute but conditional, because there is really no prior obli- 

Ee2 


420 DE OBLIGATIONIBUS. [rrr. $$ 168-181. 


gation until the condition is realized, at which moment novation 
takes place, and the prior obligation is extinguished. 

Justinian enacted that no contract should operate a novation, 
unless the stipulating parties expressly declared their intention that 
such novation should be produced, Inst. 3, 29, 3. 

$ 180. Liris contEsTATIO, Joinder in issue, or the commencement 
of a suit, denoted, under the system of statute-process, when 
pleadings were oral, the close of the proceedings in jure, when, the 
praetor having allowed an action, each party called those who were 
present to attest the nature of the issue allotted to be tried. 
Festus. * Contestation is when both parties exclaim, “Give your 
attestation.” It marks the definitive settlement of the issue to be 
tried.” Under the formulary system the term was still employed, 
but marked the moment when the praetor delivered the written 
formula containing the commission of the judex. Under the third 
period of the law, when the praetor or highest judicial functionary 
was himself the judex, that is, no longer delegated the cause to an 
inferior authority (judex pedaneus), but heard and determined it 
himself, Litis Contestatio denoted the commencement of the trial 
before the judex. Lis enim tunc contestata videtur, quum judex 
per narrationem negotii causam audire coeperit, Cod. 8, 9, 1. * Litis 
contestatio is the moment when the judge begins to hear the recital 
of the cause of action By legitima judicia, 4 § 103, Gaius denotes 
those actions in the formulary procedure which by provision of the 
lex Aebutia, whereby statute-process was abolished, were declared 
to have the same effect, in respect of novation and otherwise, as the 
statute-process, which they superseded. Actions terminable with 
the praetorship were such actions as did not derive their validity 
from the lex Aebutia, but from the administrative power of the 
praetor. 

The transformations of Litis contestatio which are described 
above were not the last that it was destined to undergo. In the 
first stage of procedure under the Canon law, after the libellus of the 
plaintiff had been read aloud, the judge asked the plaintiff whether 
he abided by his suit; and, on his answer in the affirmative, his 
libellus was contradicted by the defendant in general terms (nego 
narrata prout narrantur et dico petita fieri non debere). The 
detailed contention of the parties over the particular averments of 
the plaintiff did not follow till a subsequent stage. 

In Germany in 4.p. 1654 an ordinance of the empire required 








ut. $$ 168-181. ] LITIS CONTESTATIO. 421 


the defendant to answer all the allegations of the plaintiff and 
adduce all his own exceptions at the first stage: and, as in practice 
the reading of the plaintiff’s libellus was omitted, the Litis con- 
testatio, or first term or stage of the suit, consisted in this detailed 
answer of the defendant. Subsequently, when written documents 
superseded oral procedure, the Litis contestatio was identified with 
the defendant’s delivery of what was called his book of exceptions. 

The Novation produced by Litis contestatio is called by modern 
writers Novatio necessaria. It has not all the incidents of Novatio 
voluntaria, or Novation induced by convention: for instance, as 
Litis contestatio must not deteriorate the position of the creditor, 
the object of its incidents being to remove the disadvantages which 
he suffers from the duration of the suit, it does not extinguish the 
accessaries of the principal obligation, e.g. privilegia of widow or 
infant, &c., interest, hypotheca, p. 352, Dig. 46, 2, 29. It originally, 
as we have seen, in consequence of the Correality of the Fidejussor, 
i.e. the unity of his obligation with that of the principal, extin- 
guished the liability of the Fidejussor: but this rule, as we have 
mentioned, was abrogated by Justinian, who enacted that the 
liability of the Fidejussor could not be extinguished by Litis con- 
testatio, but only by Solutio. 

Nor, secondly, did Novatio necessaria, though it extinguished 
Civilis obligatio, prevent, like Novatio voluntaria, the continuance 
of Naturalis obligatio, Dig. 12, 6, 60. 

Under Justinian Litis contestatio lost half of its effect: it still 
retained the positive function of generating a new obligation ; but 
it ceased to have the negative function of extinguishing the old 
obligation. From this time, accordingly, we cease to hear of pro- 
cess-consumption whether extinctive (litis consumptio ipso jure) as 
relating to statutory actions, or counteractive (exceptio rei in judi- 
cium deductae) as relating to actions dependent on the authority 
of the praetor. Indeed the former of these (litis consumptio ipso 
jure) had disappeared long before, contemporaneously with the dis- 
appearance of legitima judicia ; that 1s to say, with the abolition of 
the ordo judiciorum (formulary system), and the transformation of 
all procedure into cognitio extraordinaria. 

Gaius attributes a Novative power not only to Litis contestatio, 
but also to Judgment (res judicata). Judgment, like litis con- 
testatio, has two functions, one Negative, the other Positive. By 
ite Negative operation it extinguishes the previous right of action : 








422 DE OBLIGATIONIBUS. [nr. $$ 168-181. 


by its Positive it entitles, in the event of Condemnatio, to Execu- 
tion. The Positive function is in the interest of the plaintiff: the 
Negative principally in the interest of the defendant. Under Jus- 
tinian the novative effect of Judgment, as well as that of Litis con- 
testatio was considerably altered. It was partly narrowed: e.g. an 
absolution on the ground of Plus petitio, 4 § 53, or of a dilatory ex- 
ception, 4 § 120, no longer grounded an exceptio rei judicatae : and 
it was partly extended: for instance it founded exceptio rei judicatae 
not only in respect of the principal question, but also in respect of 
incidental questions, whose decision was preliminary to that of the 
principal question, and in respect of any exceptions or replications. 
In view of these changes it is said that Res judicata, like Litis 
contestatio, while it retained its positive functions, lost its negative 
functions. But while it still generated an exceptio rei judicatae it 
seems difficult to say that it ceased to have a negative or consump- 
tive operation: though this was attenuated, and made more 
rigorously subsidiary to the positive operation; and was henceforth 
left entirely to the discretion of the praetor. 

The present seems to be the most convenient occasion that we 
shall find for gathering together in one conspectus the various 
operations and effects of Litis contestatio: fuller explanations of 
each will be found scattered over this treatise in connexion with the 
various matters to which such operations relate. 

1. The principal operation was originally the processual con- 
sumption of a right of action (litis consumptio) which has just been 
described : the barring of any subsequent suit in virtue of the maxim : 
De eadem re ne bis sit actio, Quintilian, 7, 6, 1, either by extinction 
(ipso jure) or by counteraction (ope exceptionis) of the plaintiff’s right 
to sue. This occurred, as we shall see, 4 § 103, even when in conse- 
quence of process-prescription there was no judgment, or when, by 
reason of Plus petitio or some dilatory plea, there was a judgment 
against the plaintiff but not upon its merits. The operation was 
gradually abrogated before the time of Justinian, only leaving 
traces of itself in the Novatio necessaria, which extinguished indeed 
eivilis obligatio but left a naturalis obligatio, sufficient to support 
the pignora or hypothecae by which the plaintiff was protected. 
Processual consumption had only considered the Intentio of the 
action that was brought: the exceptio rei judicatae, by which in 
later times the same or similar objects were accomplished, regarded 
the exact import of the Sententia. The most signal departure from 











nr. $$ 168-181.] LITIS CONTESTATIO. 423 


the principle of processual consumption was perhaps Justinian's 
constitution, Cod. 8, 41, 28, concerning Correality and Fidejussio, 
p. 398. As Correality is a single obligation imposed on several 
debtors, a suit against one extinguished the obligation of the 
remainder: e.g. a suit brought against a principal extinguished 
the right of suing the surety, and vice versa, Justinian enacted 
that the obligation of the remaining correal debtors should not be 
extinguished even by judgment against one, but only by perceptio, 
solutio, satisfactio, complete satisfaction of the plaintiff’s claim. 

2. (a) Litis contestatio, in the classical period, by interrupting 
Prescription, 4 § 110, saved the plaintiff's title from being barred 
by lapse of time. At a later period, Prescription was interrupted 
by a still earlier event, Insinuatio. As soon as Prescription of the 
right of action was interrupted, Prescription of pendency began to 
run, 4 $ 103. | 

Moreover, respecting the plaintiff's Title or ground of action it 
is a general rule that no causa superveniens, or entitling event, sub- 
sequent to Litis contestatio can avail to save the plaintiff from 
losing the action already brought, though it may give him the 
right to bring another. Further, as a general rule, the ground of 
action must not only exist before Litis contestatio but must con- 
tinue up to condemnatio. Otherwise in virtue of the maxim: 
Omnia judicia esse absolutoria, 4 $ 114, the defendant will be ab- 
solved. E.g.if the defendant in an action of theft was a conditional 
legatee of the thing which he has stolen from the heir who sues 
him for theft, and the condition is fulfilled after Litis contestatio, 
the defendant is acquitted, Dig. 13, 1, 14, pr. 

(^) Litis contestatio made, an exception to the latter rule in 
respect of the ancient institution of Usucapio ; which though not 
interrupted by litis contestatio, did not entitle the defendant to 
abeolution, as litis contestatio made it revocable, Dig. 6, 1, 18. 
Longi temporis praescriptio, like other forms of Prescription, was 
interrupted by litis contestatio, or, in later times, by Insinuatio : 
and from Cod. 7, 33, 10 and Cod. 7, 40, 2, this seems to have been 
the result when Justinian transformed longi temporis possessio into 
Usueapion. Savigny, however, § 261, and Vangerow, § 160, hold 
that then the rule of Prescription was in this respect superseded by 
the rule of Usucapion : that litis contestatio or insinuatio produced, 
that is to say, not interruption but liability to revocation. 

(c) Litis contestatio produced another exception to the rule in 





424 DE OBLIGATIONIBUR. [1r. §§ 168—181. 


the event of the destruction of the subject of litigation by casualty 
(casus) In Real actions if the defendant is a Mala fide possessor : 
in Personal actions if he is Morose (a debtor chargeable with mora) 
destruction of the subject, although ascribable to Casus, and not- 
withstanding the maxim: Impossibilium non est obligatio, does not 
save the defendant from condemnation. In the absence of Mala 
fides and Mora, casual destruction of the subject entitles the 
defendant, in virtue of the above maxim, to absolution. See 
p. 905. 

(d) Litis contestatio makes transmissible a right of action which 
before was untransmissible. Vindictive actions (actiones vindictam 
spirantes), so long as there has been no litis contestatio, are incapable 
of active transmission ; i.e. transmission to the heir of the plaintiff : 
and penal actions are incapable of passive transmission ; i. e. trans- 
mission to the heir of the defendant. But when onoe litis contes- 
tatio has taken place, these actions, in the event of the subsequent 
death of the plaintiff or defendant, become capable respectively of 
active and passive transmission, 4 $ 112. 

(e) In an action on Tort when a man is only suable to the extent 
of his enrichment thereby, the question whether he is enriched or 
not is decided entirely by his circumstances at the moment of litis 
contestatio. 

It was stated that as a general rule the plaintiff’s title to judg- 
ment was required to be in existence before litis contestatio. This 
is subject to exception in respect of some of the subordinate elements 
of title, certain minor conditions of judgment in his favour which 
agree in the common character that, in the formulary period, they 
were not expressed, as conditions of the judgment, in the intentio 
of the formula. E.g. in vindicatio the possession of the subject 
by the defendant, although it commences after litis contestatio, 
suffices to render him liable to be condemned. So in the actio de 
peculio, the existence of a peculium; in the actio mandati, the 
existence of moneys belonging to the principal in the hands of the 
agent; in the actio pigneraticia, the satisfaction of the debt by the 
mortgagor; all respectively conditions of & judgment in favour of 
the plaintiff, render the defendant liable to condemnatio even when 
they are events subsequent to the institution of the suit. 

The same applies to certain exceptions: in the exceptio divisionis 
the question respecting the solvency of co-debtors, p. 402, and in 
the beneficium competentiae, the question respecting the means of 








1n. § 182.] O. EX DELICTO. 425 


the defendant, p. 350, is decided according to the circumstances in 
existence at the moment of condemnation. 

3. Litis contestatio has hitherto been considered in respect of its 
influence on the Conservation or Destruction of a ground of action. 
We proceed to its effect on the Amount of the condemnation. 

(a) To save the plaintiff from being injured by the unavoidable 
duration of the suit, without, however, deterring the defendant from 
the defence of what he honestly believes to be his rights; a judg- 
ment against the defendant requires him to restore Omnis Causa, i.e. 
omne quod habiturus esset actor, si statim judicii aecepti tempore 
res ei reddita fuisset, Dig. 6, 1, 20, all that the plaintiff would have 
had if the thing had been restored at the moment of litis contestatio. 
This implies the restitution of Fructus, all the gain of whatever 
nature that the defendant has derived from the fact of possession. 
If the object claimed is a sum of money, the defendant, notwith- 
standing the absence of mora, must pay Interest from the date of 
litis contestatio, 2, 280, comm. 

(6) After litis contestatio the defendant, the bona fide possessor 
as well as the mala fide possessor, the debtor free from mora as well 
as the debtor chargeable with mora, is liable for Culpa of every 
kind and degree, and responsible for the destruction and deteriora- 
tion thereby oecasioned. E.g. he is liable for neglected fruits 
(fructus percipiendi) as well as for fructus consumpti and fructus 
extantes, for the omission to collect the fruits is a piece of culpable 
supineness. 

In hereditatis petitio effects a and 6 are made by Sc. Juventianum 
to date not from litis contestatio, but from a still earlier period, the 
moment of Insinuatio. 

(c) Litis contestatio in actiones stricti juris fixes the moment to 
be regarded in the valuation of the plaintiff's interest in the subject 
of dispute (litis aestimatio). In bona fide actions this date is given 
by the moment of Condemnatio. See 4 § 51. 

4. Litis contestatio affects the character of the Subject of liti- 
gation, which it converts into res Litigiosa, thereby rendering 
unlawful ite alienation by the plaintiff or defendant. See 4 § 117. 


DE OBLIGATIONIBUS QUAE EX DELICTO NASCUNTUR. 


$ 182. Transeamus nunc ad obli- $182. We proceed to obligations 
gationes quae ex delicto nascuntur, which originate in delict ; theft, for 
ueluti si quis furtum fecerit, bona instance, rapine, damage, or out- 








426 DE OBLIGATIONIBUS. [rri. $ 182. 


rapuerit, damnum dederit, iniuriam rage; which are always Real, or in- 
commiserit; quarum omnium rerum  curred by some act or performance ; 
uno genere consistit obligatio, cum whereas contractual obligations may 
ex contractu obligationes in Tir be created in four different ways, as 
genera dzducantur, sicut supra we have seen. 

exposuimus. 

All actions are founded on the violation of some right, that is 
to say, on a wrong or delicet. Even actions on contract are founded 
on a wrong, namely, on a breach of contract, and the plaintiff 
recovers not his primary right but a sanctioning right, in whatever 
measure it may be awarded. Delict (delictum, maleficium), how- 
ever, is generally used in a more limited sense, to signify any wrong 
or unlawful act other than a breach of convention. Breach of con- 
tract is the violation of a jus in personam, or right available against 
& determinate person: delict in the narrower sense is a violation of 
@ jus in rem, or right available against all the world. Jus in rem 
includes not only property and servitude but also rights of status, 
and what we have called primordial righta, e. g. the right to liberty, 
security, health, honour, reputation, for these rights can be main- 
tained not against certain persons only but against all mankind. 

Delicts or wrongs have a further division, into public and private. 
Public wrongs are called crimes, private wrongs are called tres- 
passes, or torts, or civil injuries. Crimes have been defined to be 
such unlawful acts as are injurious in the first instance to the State ; 
civil injuries, such as are harmful, principally or exclusively, to 
private individuals. But this definition is not satisfactory, because 
all or most crimes are injurious to private individuals, and all or 
most civil injuries are harmful to the community. A better defi- 
nition is the following : Crimes are those unlawful acts which create 
an obligation (liability to punishment) which can only be remitted 
by the State; Civil injuries are those unlawful acts which engender 
an obligation remissible by the private individual whose primary 
rights are violated. 

The following may be taken as a natural classification of actions. 
Every right of action arises out of a delict, i.e. a violation of some 
positive or negative obligation. 

(1) A violation of a positive obligation, that is, an obligation to 
perform, is a violation of a jus in personam, and founds an action 
for breach of contract, called an action ex contractu. 

(2) A violation of a negative obligation, that is, an obligation to 
abstain, is a violation of a jus in rem, and either imposes an obli- 





ur. § 182.] O. EX DELICTO. 427 


gation remissible by the individual aggrieved, founding a civil 
action real or personal, and called in the latter case an action ex 
delicto ; 

(3) Or imposes an obligation remissible by the State but irremis- 
sible by the individual, founding a criminal prosecution. 

Actions ex contractu seek to enforce both the righte immediately 
founded on a contract and those created by a party's subsequent 
unlawful intention (dolus) or carelessness (culpa) in relation to the 
contract. 

Real actions and actions ex contractu imply that a defendant 
HAS something which he ought not to have: withholds from the 
plaintiff some thing or service of pecuniary value to which the 
plaintiff is entitled. They do not necessarily impute unlawful dis- 
position (dolus or eulpa) to the defendant. Actions ex delicto do 
not necessarily imply that the defendant Has what he ought not to 
have; they necessarily impute unlawful disposition (dolus or culpa) 
to the defendant, $ 211, and imply imputabihty, or responsibility 
for dolus and culpa. 

In respect of contracts Culpa is distinguished as of different 
degrees; and sometimes a higher, sometimes a lower degree is 
capable of generating obligation. In respect of delicts Culpa 1s not 
distinguished by gradations; the least Culpa suffices to generate 
obligation. 

All actions ex delicto are Penal, either bilaterally or unilaterally ; 
that is, they tend, if not both to enrich the plaintiff and impoverish 
the defendant (bilaterally penal) at least to impoverish the de- 
fendant without enriching the plaintiff (unilaterally penal), as, for 
example, suits for mdemnification. Real actions and actions ex 
contractu are not Penal but Civil, Conservative, or Restorative ; 
they maintain the fortunes of both parties at their original level ; 
at the level destroyed or impeded by the defendant's wrong. We 
have before used the term Civil to distinguish the Private code 
from the Political code and the Criminal code. We here take it 
in a narrower sense to distinguish that part of the Private code 
which deals with Domestic relations and Dominion and Obligation 
ex contractu from that part which deals with Obligation ex delicto, 
which latter part may be called the Penal code. Penal juris- 
prudence forms a sort of intermediate between Civil jurisprudence, 
in this narrower sense, and Criminal jurisprudence. 





428 


DE OBLIGATIONIBUS. 


[1rr. $$ 183-208, 


DE FURTIS. 


§ 183. Furtorum autem genera 
Ser. Sulpicius et Masurius Sabinus 
Till esse dixerunt, manifestum et 
nec manifestum, conceptum et obda- 
tum; Labeo duo, manifestum (et) 
nec manifestum ; nam conceptum et 
oblatum species potius actionis esse 
furto cohaerentes quam genera fur- 
torum ; quod sane uerius uidetur, 
sicut inferius apparebit. 


$ 184. Manifestum furtum qui- 
dam id esse dixerunt, quod dum fit, 
deprehenditur. alzi uero ulterius, 
quod eo loco deprehenditur, ubi 
fit, ueluti si in oliweto olivarum, in 
uineto uuarum furtum factum est, 
quamdiu in eo oliueto aut uineto 
fur sit; aut si in domo furtum 
factum sit, quamdiu in ea domo fur 
sit. alii adhuc ulterius eo usque 
manifestum furtum esse dixerunt, 
donec perferret eo quo perferre fur 
destinasset. alii adhuc ulterius, 
quandoque eam rem fur tenens 
uisus fuerit; quae sententia non 
optinuit. sed et illorum sententia 
qui existimauerunt, donec perferret 
eo quo fur destinasset, deprehensum 
furtum manifestum esse, ideo non 
uidetur probari quia magnam reci- 
pit dubitationem, utrwm unius diei 
an etiam plurium dierum spatio id 
terminandum sit. quod eo pertinet, 
quia saepe in aliis ciuitatibus sub- 
reptas res in alias ciuitates uel in 
alias prouincias destinant fures per- 
ferre. ex duabus itaque superiori- 
bus opinionibus alterutra adpro- 
batur; magis tamen plerique post- 
eriorem probant. 


$183. Thefts are divided by Ser- 
vius Sulpicius and Masurius Sabinus 
into four kinds, theft detected in 
the commission, simple theft, the 
possession of stolen goods discovered 
upon search, and the introduction 
of stolen goods. Labeo makes only 
two kinds, theft detected in the 
commission and simple theft, be- 
cause the possession and introduc- 
tion of stolen goods are not thefts, 
but actionable circumstances con- 
nected with theft; and this seems 
the better opinion, as will presently 
appear. 

$184. Theft detected in the com- 
mission is limited by some to de- 
tection in the act of taking; by 
others extended to detection while 
the thief is in the place where the 
theft is committed; for instance, 
if olives are stolen from an olive- 
yard, or grapes from a vineyard, 
while the thief is in the oliveyard, 
or vineyard ; or if a theft 1s com- 
mitted in a house, while the thief 
is in the house. Others extend it 
to detection before the thief has 
carried the goods away to the place 
where he intends to deposit them ; 
others to detection while the thief 
has the goods in his hands. The 
fourth opinion has not been adopt- 
ed, and the third opinion that, 
until the thief has carried the stolen 
goods to their place of destination, 
he may be detected in the commis- 
sion, is also impugned on the ground 
of the uncertainty whether one day 
or several is the limit of the time 
within which he must be detected; 
for a thief often intends to carry 
the goods he has stolen in one city 
into another city or province. The 
first and second opinions are com- 
monly adopted, and more generally 
the second. 








rr. $$ 183-208. ] 


$185. Nec manifestum furtum 
quid sit, ex tis quae diximus intelle- 
gitur. nam quod manifestum non 
est, id nec manifestum est. 

§ 186. Conceptum furtum dici- 
tur, cum apud aliquem testibus 
praesentibus furtiua res quaesita et 
inuenta sit. nam in eum propria 
actio constituta est, quamuis fur non 
sit, quae appellatur concepti. 


$ 187. Oblatum furtum dicitur, 
cum res furtiva tibi ab aliquo 
oblata sit eaque apud te concepta 
sit; wtique si ea mente data tibi 
fuerit, ut apud te potius quam apud 
eum qui dederit, conciperetur. nam 
tibi, apud quem concepta est, pro- 
pria aduersus eum qui optulit, 
quamuis fur non sit, constituta est 
actio, (quae) appellatur oblati. 


$ 188. Est etiam prohibiti furti 
(actio) aduersus eum qui furtum 
quaerere uolentem prohibuerit. 


$189. Poena manifesti furti ex 
lege Xii tabularum capitalis erat. 
nam liber werberatus addicebatur ei 
cui furtum fecerat; utrum autem 
seruus efficeretur ex addictione, an 
adiudicati loco constitueretur, ue- 
teres quaerebant. in seruum aeque 
uerberatum animadwuertebatur. sed 
postea inprobata est asperitas poe- 
nae et tam ex serui persona quam 
ex liberi quadrupli actio praetoris 
edicto constituta est. 


$ 190. Nec manifesti furti poena 
per legem (X71) tabularum dupli 
inrogatur, eamque etiam praetor 
conseruat. 

$ 191. Concepti et oblati poena 
ex lege Xii tabularum tripli esi, 


DE FURTIS. 


429 


$ 185. Simple theft is theft not 
detected in the act. 


$186. The discovery of stolen 
goods, when a person's premises are 
searched in the presence of wit- 
nesses, makes him liable, even 
though innocent of theft, to a 
special action for receiving stolen 
goods. 

$ 187. To introduce stolen goods 
is to pass them off to a man, on 
whose premises they are discovered, 
with the intent that they should be 
discovered on his premises rather 
than on those of the introducer. 
The man on whose premises they 
are found may sue the passer off, 
though innocent of theft, in an 
action for the introduction of stolen 
goods. 

§ 188. An action for prevention 
of search may be brought against 
the man who prevents the search of 
his premises where stolen goods are 
suspected to be conceuled. 

$189. The punishment provided 
by the law of the Twelve Tables for 
theft detected in the commission 
was capital; a freeman was first 
scourged and then delivered, by 
judgment of the magistrate, to the 
person from whom he had stolen 
(whether made a slave by the de- 
livery, or reduced to the condition 
of an insolvent judgment debtor, 
was an old question); a slave was 
also punished by scourging. Later 
ages disapproved of the severity of 
this punishment, and theft, whether 
by a slave or by a freeman, was 
punished by the praetorian edict 
with fourfold damages. 

§ 190. Simple theft is punished 
by the law of the Twelve Tables 
with double damages, which penalty 
the praetor has retained. 

§ 191. The possession and intro- 
duction of stolen goods are pun- 


430 


eaque similiter a praetore serwa- 
tur. 


$ 192. Prohibiti actio quadrupli 
est ex edicto praetoris introducta ; 
lex autem eo nomine nullam poe- 
nam constituit. hoc solum praeci- 
pit, ut qui quaerere uelit, nudus 
quaerat, lico cinctus, lancem ha- 
bens; qui si quid inuenerit, iubet 
id lex furtum manifestum esse. 


§ 193. Quid sit autem lictum, 
quaesitum est. sed uerius esf con- 
suti genus esse, quo necessariae 
partes tegerentur. quae res [lex 
tota] ridicula est. nam qui westi- 
tum quaerere prohibet, is et nudum 
quaerere prohibitwrus est, eo magis 
quod ita quaesita re (et) inuenta 
maiori poenae subiciatur. deinde 
quod lancem siue ideo haberi iu- 
beat, ut manibus occupatis nihil 
subiciat, siue ideo ut quod inue- 
nen, ibi inponast, neutrum eorum 
procedit, si id quod quaeratur, eius 
magnitudinis aut naturae sit, ut 
neque subici neque ibé inponi pos- 
sit. certe non dubitatur, cuius- 
cumque materiae sit ea lanx, satis 
legi fieri, 


$ 194. Propter hoc tamen quod 
lex ex ea causa manifestum furtum 
esse iubet, sunt qui scribunt fur- 
tum manifestum aut lege (?ntellegt) 
aut natura: lege id ipsum de quo 
loquimur, natura illud de quo su- 
perius exposuimus. sed uerius est 
natura tantum manifestum furtum 
intellegi. neque enim lex facere 
potest, ut qui manifestus fur non 


DE OBLIGATIONIBUS. 


[111. $$ 183-208. 


ished by the law of the Twelve 
Tables with triple damages, a pen- 
alty which the praetor has also 
adopted. 

$ 192. Prevention of search ren- 
ders liable to fourfold damages, & 
penalty which the edict of the prae- 
tor first ordained. The Twelve 
Tables inflicted no penalty for such 
an offence, but directed that the 
subsequent searcher must be naked, 
only wearing a girdle, and carrying 
a platter in his hands, and made 
the ensuing discovery of stolen 
goods a detection of theft in the 
commission. 

§ 193. What the girdle was, is 
doubted, but it seems to have been 
a covering for the loins. The whole 
enactment of the Twelve Tables is 
nugatory, for he that prevents a 
man from searching in his clothes 
would prevent him from searching 
naked, especially as in such a 
search the finding of stolen goods 
would subject him to a heavier 
penalty. Besides, whether the plat- 
ter is to be held by the searcher in 
order that his hands being engaged 
in holding it may not bring any- 
thing into the house, or in order 
that what is found may be placed 
thereupon, neither reason can be 
alleged when the thing searched for 
is of such a size or nature that it 
could not be brought into the house 
in the hand, nor placed on the 
platter. It is not disputed that a 
platter of any material satisfies the 
requirement of the Tables. 

§ 194. On account of the enact- 
ment that & discovery in such a 
search is a detection of theft in the 
commission, some writers say that 
detection in the commission is of 
two kinds, legal and natural: legal 
detection being detection in such a 
search; natural detection, detection 
as recently defined. But in truth, 
the natural mode of detection in 





rr. $$ 183-208. | 


sit, manifestus sit, non magis quam 
qui omnino fur non eit, fur sit, et 
qui adulter aut homicida non sit, 
adulter uel homicida sit. at illud 
sane lex facere potest, ut proinde 
aliquis poena teneatur atque si fur- 
tum uel adulterium uel homicidium 
admisisset, quamuis nibil eorum 
admiserit. 


$195. Furtem autem fit non 
solum cum quis intercipiendi causa 
rem alienam amouet, sed genera- 
liter cum quis rem alienam inuito 
domino contrectat. 


$196. Itaque si quis re quae 
apud eum deposita sit utatur, fur- 
tum committit. et si quis uten- 
dam rem acceperit eamque in alium 
usum transtulerit, furti obligatur, 
ueluti si quis argentum utendum 
acceperit, quasi amicos ad cenam 
inuitaturus, et id peregre secum 
tulerit, aut si quis equum gestandi 
gratia commodatum longius aliquo 
duxerit, quod ueteres scripserunt 
de eo qui in aciem perduxisset. 


$ 197. Placuit tamen eos qui 
rebus commodatis aliter uterentur 
quam uéendas accepissent, ita fur- 
tum committere, si intellegant id 
se inuito domino facere, eumque, si 
intellexisset, non permissurum ; at 
si permissurum credant, extra furti 
crimen uideri; optima sane dis- 
tinctione, quod furtum sine dolo 
malo non committitur, 


$198. Sed et si credat aliquis 
inuito domino se rem contrectare, 
domino autem uolente id fiat, dici- 
tur furtum non fieri, unde illud 


DE FURTIS. 


431 
the commission is the only one that 
we can allow, for law cannot turn a 
thief not detected in the act into a 
thief detected in the act, any more 
than it can turn à man who is not 
a thief into & thief; or make an 
adulterer or homicide out of a man 
who has not killed or committed 
adultery. What law can accom- 
plish is this, that a person shall be 
subject to a penalty just as if he 
had committed theft, adultery, or 
homicide, although he have not 
committed any of those offences. 

§ 195. Theft is not confined to 
the carrying away the property 
of another with intent of appro- 
priation, but embraces all corpo- 
ral dealing with the property of 
another against the will of the 
owner. 

§ 196. Thus, to use a thing com- 
mitted to one’s keeping as a deposit, 
or to put a thing that is lent for 
use to a different use than that for 
which it was lent, is theft ; to bor- 
row plate, for instance, on the 
representation that the borrower is 
going to entertain his friends, and 
then to carry it away into the 
country; or to borrow a horse for 
a drive, and then to take it out of 
the neighbourhood; or, like the man 
in the old case, to take it into battle. 

$ 197. It is held, however, that 
putting a thing lent for use to a 
different use than the lender con- 
templated is only theft if the bor- 
rower knows it to be contrary to 
the will of the owner, and that, if 
he had notice, he would refuse per- 
mission; but if he believes that the 
owner would give permission, it is 
not theft; and the distinction is 
just, for there is no theft without 
unlawful intention. 

$ 198. To deal with a thing in 
the belief that you are acting against 
the will of the owner, whereas tle 
owner is consenting, is said not to 





432 


quaesitum [et probatum|] est, cum 
Titius seruum meum sollicitaerit, 
ut quasdam res mihi subriperet et 
ad eum perferret, (et seruus) id 
ad me pertulerit, ego, dum uolo 
Titium in ipso delicto deprehen- 
dere, permiserim seruo quasdam res 
ad eum perferre, utrum furti an 
serui corrupti iudicio teneatur Ti- 
tius mihi, sn neutro. responsum 
neutro eum teneri, furti ideo quod 
non inuito me res contrectawerit, 
serui corrupti ideo quod deterior 
seruus factus non est. 

$199. Interdum autem etiam 
liberorum hominum furtum fit, ue- 
luti si quis liberorum nostrorum 
qui in potestate nostra sint, siue 
etiam uxor quae in manu nostra sit, 
siue etiam iudicatus uel auctoratus 
meus subreptus fuerit. 

$ 200. Aliquando etiam suae rei 
quisque furtum committit, ueluti si 
debitor rem quam creditori pignori 
dedit, subtraxerit, uel si bonae fidei 
poseessori rem meam  possidenti 
subripuerim. unde placuit eum 
qui seruum suum quem alius bona 
fide possidebat, ad se reuersum 
celauerit, furtum committere. 


$ 201. Rursus ex diuerso inter- 
dum alienas res occupare et usuca- 
pere concessum est, nec creditur 
furtum fieri, ueluti res hereditarias 
quarum heres non est nactus pos- 
sessionem, nisi necessarius heres 
extet ; nam necessario herede ex- 
tante placuit nihil pro herede usu- 
capi posse. item debitor rem quam 
fiduciae causa creditori mancipaue- 
rit aut in iure cesserit, secundum 
ea quae in superiore commentario 
rettulimus, sine furto possidere et 
usucapere potest. 


DE OBLIGATIONIBUS. 


[rrr. $$ 183-208. 


be theft ; whence & question arises, 
if Titius solicits my slave to steal 
my property, and convey it to him, 
and my slave informs me of it, and 
I, wishing to detect Titius in flag- 
rante delicto, permit my slave to 
convey my goods to him; can an 
action of theft or for corrupting a 
slave be maintained against Titius ? 
It has been held that neither action 
is maintainable; not theft, because I 
consented to his dealing with my pro- 
perty; not corruptingaslave, because 
the slave resisted the solicitation. 

§ 199. A freeman may be the 
subject of a theft; for instance, a 
child in my power, a wife in my 
hand, my insolvent debtor, or my 
hired gladiator, if secretly removed 
from my control. 


§ 200. A man sometimes steals 
his own property; for instance, a 
debtor who purloins the goods which 
he has pledged to a creditor, or a 
proprietor who steals his property 
from & bona fide possessor; and 
accordingly it has been held, that 
concealment of one's slave, who, 
being possessed in good faith by 
another had returned to his owner, 
amounted to theft. 

$ 201. Conversely, property be- 
longing to another may be seized 
and converted by usucapion without 
committing theft; hereditaments, 
for instance, before a successor 
has obtained possession, except in 
the case of a necessary successor; for 
where there is a necessary successor 
the first occupant cannot acquire 
by usucapion as quasi successor (2 
§ 58). Also a mortgagor, having 
detention of pruperty mortgaged by 
mancipation or surrender in court, 
as I mentioned in the preceding 
book, may, without committing 
theft, repossess it and acquire new 
ownership thereof by usucapion 


(2 § 59). 


mir. §§ 183-208.] 


§ 202. Interdum furti tenetur 
qui ipse furtum non fecerit, qualis 
est cuius ope consilio furtum factum 
est. in quo numero est qui nummos 
tibi excussit, ut eos alius subriperet, 
uel obstitit tibi, ut alius subriperet, 
aut owes aut boues tuas fugauit, ut 
alius eas exciperet. et hoc ueteres 
scripserunt de eo qui panno rubro 
fugauit armentum. sed si quid per 
lasciuiam et non data opera ut far- 
tum committeretur, factum eit, 
uidebimus an utilis actio dari de- 
beat, cum per legem Aquiliam quae 
de damno lata (est), etiam culpa 
puniatur. 


$ 203. Furti autem actio ei con- 
petit cuius interest rem saluam esse, 
licet dominus non sit. itaque nec 
domino aliter conpetit quam si etus 
intersit rem non perire. 


$ 204. Vnde constat creditorem 
de pignore subrepto furti agere 
posse ; adeo quidem, ut quamuis 
ipse dominus, id est ipse debitor, 
eam rem subripuerit, nihilo minus 
creditori conpetat actio furti. 


$205. Item si fullo polienda . 


curandaue aut sarcinator sarcienda 
uestimenta mercede certa acceperit 
eaque "furto amiserit, ipse furti 
habet actionem, non dominus, quia 
cum iudicio locati & fullone aut 
sarcinatore suum consequi possit, 
&i modo is fullo aut sarcinator rei 
praestandae sufficiat; nam si sol- 
uendo non est, tunc quia ab eo 
dominus swum consequi non potest, 
ipsi furti actio conpetit, quia hoc 
casu ipsius interest rem saluam esse. 


$ 206. Quae de fullone aut sar- 
cinatore diximus, eadem transfere- 
mus et ad eum cui rem commodaui- 
mus. nam ut illi mercedem capi- 


DE FORTIS. 433 


§ 202. Theft may be chargeable 
on & person who is not the perpe- 
trator, on him, namely, by whose 
aid and abetment a theft is com- 
mitted ; to which class belongs the 
man who knocks out of your hand 
money for another to pick up, or 
stands in your way that another 
may snatch it, or scatters your sheep 
or oxen that another may steal them, 
like the man in the old books, who 
waved a red cloth to frighten a 
herd. If the same thing were done 
as a frolic, without the intention of 
assisting a theft, & modified or prae- 
torian form of action may be main- 
tainable, for the Aquilian law re- 
lating to damage makes even care- 
lessness penal. 

$ 203. The action of theft is 
maintainable by the person in- 
terested in the preservation of the 
property, who need not be the 
owner; and even the owner cannot 
maintain it unless he suffers detri- 
ment from the loss. 

§ 204. Hence when a pawn is 
stolen, the pawnee can sue, and 
even the owner or pawnor who 
steals a pawn is suable for theft by 
the pawnee. 


§ 205. So if clothes are delivered 
to be cleaned or finished or mended 
for a certain remuneration, and then 
are stolen, the fuller or tailor has 
the action, and not the owner ; for 
the owner is not prejudiced by the 
loss, having his action of letting 
against the bailee to recover the 
value; supposing always, that the 
bailee is able to make the loss good. 
If the bailee is insolvent, the owner 
cannot recover out of him, and can 
maintain an action against the thief ; 
being, in this hypothesis, interested 
in the loss of the property. 

§ 206. What has been said of the 
fuller and tailor applies to the bor- 
rower; for, as the remuneration 
they receive makes them responsible 


Ff 





434 DE OBLIGATIONIBUS. 


endo custodiam praestant, ita hic 
quoque utendi commodum perci- 
piendo similiter necesse habet cus- 
todiam praestare. 

§ 207. Sed is apud quem res de- 
posita est, custodiam non praestat, 
tantumque in eo obnoxius est, si 
quid ipse dolo (malo) fecerit. qua 
de causa (8i) res ei subrepta fuerit, 
quia restituendae eius nomine de- 
posit non tenetur, nec ob id eius 
interest rem saluam esse, furti [ita- 
que] agere non potest, sed ea actio 
domino conpetit. 

$ 208. In summa sciendum est 
quaesitum esse an inpubes rem 
alienam amouendo furtum faciat. 
plerisque placet, quia furtum ex 
adfectu consistit, ita demum obli- 
gari eo crimine inpuberem, si 
proximus pubertati sit et ob id 
intellegat se delinquere. 


[mmr $$ 183-208. 


for custody, so the advantage the 
borrower derives from the use of an 
article requires him to keep it safely 
at his peril. 

§ 207. Asa depositary is not an- 
swerable for the safe-keeping of the 
thing deposited, but only for fraud, 
and, if it is stolen, is not com- 
pellable to make restitution by 
action of deposit, he is not inter- 
ested in its loss ; and therefore the 
action of theft is only maintainable 
by the depositor, 


§ 208. Finally, it is a question 
whether a child below the age of 
puberty, who carries away the pro- 
perty of another, commits a theft; 
and most agree that as theft de- 
pends on intention, obligation by 
theft is not incurred unless the 
child, being near to puberty, under- 
stands its delinquency. 


Theft in modern systems of jurisprudence is a crime, that is, 


belongs to the penal or criminal code. 


In Roman law, as in other 


early systems, it is a private injury, and treated as a subject of the 
civil code. This was confirmed by the law of the Twelve Tables, 
which allowed a compromise or composition for theft, that is, 
allowed the obligation (liability to the legal sanction) thereby 
engendered to be extinguished by private convention between the 
party wronged, and the wrongdoer, Dig. 2, 14, 7 § 14. 

$184. Aulus Gellius gives a fragment of Sabinus which com- 
bines the first and third definition of furtum manifestum. Mani- 
festum autem furtum est, ut ait Masurius, quod deprehenditur 
dum fit. Faciendi finis est, cum perlatum est quo ferri coeperat, 
9, 18, 1. ‘Manifest theft is that which is detected in the act. 
The act is finished when the removal of the goods to the place 
intended is completed. Justinian confirms the third definition, 
Inst. 4, 1, 3. 

$ 189, The reason why furtum manifestum was subjected to a 
heavier penalty than furtum nec manifestum was not because the 
barbarous legislator supposed that detection in the act was an 
aggravation of the offence, but because he wished, by the amplitude 
of the legal remedy offered, to induce the aggrieved party not to 





m. $$ 183-208.] DE FURTIS. 455 


take the law into his own hands and inflic summary vengeance on 
the offender, particularly as it was lawful to kill à nocturnal thief, 
or one who during the day defended himself with a weapon. In 
the infancy of society it is an important object to the legislator to 
induce an injured person to have recourse to the public tribunals 
instead of righting himself, that is to say, constituting himself both 
lawgiver and judge. 

That such was really the motive of the legislator we have historic 
evidence in the declaration of Rotharis, ruler of the Langobards, 
A.D. 648. He gives the relatives of the slain their election be- 
tween the primitive vengeance for blood (feud or vendetta), and a 
composition or pecuniary fine (wergeld or poena) to be recovered 
by action before the public tribunals. He says that he fixes a high 
fine in order to induce plaintiffs to forego their right of feud ; and 
implies that he would gladly have abolished the right of feud or 
private war, but felt that it was too deeply rooted in the habits of 
his tribe to be extirpated by legislation. Bethmann-Hollweg, Der 
Germ. Civ. Process, $60. 

This writer supposes, Der Róm. C. P., $ 96, that the praetorian 
action Furti manifesti had a Fictitious formula, 4 $ 82, and suggests 
the following : 

Demonstratio: Quod Numerius Negidius Aulo Agerio furtum 
manifestum fecit paterae aureae, 

Fictio: Si ob eam rem Numerium Negidium ex lege verberari 
itemque Aulo Agerio addici oporteret, 

Condemnatio : Quanti ea res fuit, tantae pecuniae, judex, Nume- 
rum Negidium Aulo Agerio quadruplum condemnato: Si non 
paret, absolvito. ; 

According to Gellius a slave after having been scourged was 
thrown from the Tarpeian rock, and some writers think that Gaius 
stated this fact in the above passage. 

§ 193. We must distinguish between furtum conceptum and 
furtum lance et licio conceptum. Ea quoque furta quae per lancem 
liciumque concepta essent, proinde ac si manifesta forent, vindica- 
verunt, Gellius, 11, 18, 9. ‘ Possession of stolen goods discovered 
on search with the platter and girdle was punished as theft de- 
tected in the act. Cf. Inst. 4, 1, 4. 

Traces of the word ‘conceptum’ occur in a fragment of the 
Twelve Tables: Tignum junctum aedibus vineaeque et concapet 
ne solvito, ‘ Timber built into a house or vineyard of another man 

Ff 








436 DE OBLIGATIONIBUS. [1rr. $$ 183-208. 


and discovered there by the owner must not be severed:' where 
et concapet represents either et conceptum or qui concipiet. 

The search with a platter and girdle was probably a custom 
derived from Greece, for a similar formality is described by Plato, 
Leges, 12, 7. 

In the later period of Roman law, as in modern Europe, the 
search for stolen goods was not conducted by the private party but 
by public officers. In England the object is effected by a search 
warrant. Upon the information on oath that a party has probable 
cause to suspect that his goods have been stolen, and are concealed 
in & certain dwelling-house, and on his showing the cause of his 
suspicion, a justice of the peace may grant a warrant authorizing to 
enter and search for the said goods, and to attach the goods and the 
party in whose custody they are found, and bring them before him, 
that he may give an account how he came by them, and be dealt 
with according to law. The warrant is directed to a constable or 
other publie officer and not to any private person, though it is 
proper that the party complaining should be present and assistant 
because he knows his goods. As touching the party that had 
custody of the goods, if they were stolen, but not by him but by 
another that sold and delivered them to him (furtum oblatum), 
if it appear that he was ignorant that they were stolen, he may 
be discharged as an offender and bound over to give evidence as 
a witness against him that sold them. 

§ 195. The same definition of theft is given by Paulus. Fur 
est qui dolo malo rem alienam contrectat, Sent. R. 2, 81, 1. ‘A 
thief is he who with evil intention handles (lifts, moves, touches,) 
the" property of another. Justinian gives a different definition. 
Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel 
ipsius rei, vel etiam usus ejus possessionisve, Inst. 4, 1, 1. ‘ Theft 
is handling a thing with fraudulent intention to appropriate the 
property, use, or possession." 

It may be observed that Justinian does not say with Paulus, 
rei alienae, because a man may steal his own property, as when a 
pawnor steals from a pawnee or a proprietor from a usufructuary. 
So, by English law, to take a man's own goods out of the hands 
of a bailee, if the taking have the effect of charging the bailee, 
is larceny. The usus of a thing is stolen when the proprietor 
steals from the usufructuary, or when a pawnee unlawfully uses a 
pawn. Si creditor pignore utatur, furtum committit, Inst. 4, 1, 6. 


ri. §§ 183-208.] DE FURTIS. 497 


Possessio is appropriated when a pawn is stolen by the pawnor, 
or when the depositary uses & deposit, or the borrower pute the 
thing borrowed to an unauthorized use. In Roman law the 
depositary and borrower, unlike the pawnee, have not possession 
but merely detention (see 4 $ 153), and the same unlawful act 
(contrectatio) which amounts to theft converts their detention into 
possession. 

In English law larceny is defined to be the unlawful taking and 
earrying away of things personal with intent to deprive the right 
owner of the same and to make them the property of the taker. 
To constitute larceny the original taking of possession must be 
unlawful: therefore, if the owner deliver his property to & person 
in trust, the subsequent conversion by the bailee, though an offence 
and a breach of faith, is not larceny, because the original taking 
was lawful There are, however, two exceptions to this rule which 
deserve notice. It is larceny if the delivery was obtained by fraud, 
i.e. with an original design and pre-arranged plan to deprive the 
owner of his property and convert it to the use of the taker. "The 
possession is then unlawful in its inception. Again, if delivery 
does not divest the owner of the legal possession, conversion by the 
taker is larceny. In this respect a servant (e. g. a shepherd, carter, 
porter, butler, clerk,) is to be distinguished from a bailee, for the 
servant is regarded as not possessing, but merely the instrument 
of the owner’s possession. (See Pollock and Wright, Possession in 
the Common Law Pt. III.) 

As far as Roman law is concerned this principle would make the 
bailee, as well as the servant, capable of larceny, for in Roman law 
the bailee (except in the case of pignus) has not possession, but 
merely detention. The fact, however, that the pawnee, who has 
lawful possession, is guilty of theft if he make use of the pawn, 
shows that in Roman law an unlawful inception of possession is not 
an essential element in the definition of furtum. 

§ 198. Justinian decided that the attempt to corrupt a slave was 
as criminal as his actual corruption, and made the offender liable to 
be sued for theft and for corrupting a slave, Inst. 4, 1, 8. 

§ 201. Usucapion of the property of a voluntary successor, and 
usureceptio, or usucapion of the property of a mortgagee, have been 
mentioned in the preceding book. See 2 §§ 52-60. 

§ 202. A person who is present aiding and abetting when an 
offence is committed but is not the actual perpetrator is called, in 





438 DE OBLIGATIONIBUS. [nrr. $$ 183-208. 


English law, a principal in the second degree. He who procures 
or abets another to commit an offence but is absent at the time 
of the commission is called an accessary before the fact. Their 
punishment is usually the same as that of the principal in the 
first degree. An accessary after the fact is one who, knowing an 
offence to have been committed by another, receives, harbours, or 
assists the offender. For an explanation of the distinction between 
actio legis aquiliae directa and utilis see $ 219 comm. 

$ 203. When a sale is complete, property does not, by Roman 
law, pass to the vendee before delivery, although the thing sold 
is forthwith at the risks of the vendee. If it is stolen before 
delivery, in spite of the rule that the action of theft is maintainable 
by the person interested, the vendee cannot sue in his own name, 
but the vendor is compellable to cede his actions and the vendee 
sues in the name of the vendor, Dig. 47, 2, 14 61. From this we 
may infer the rule that to maintain the action of theft, besides 
interest in the loss, & plaintiff must have had either property or 
detention, both of which are wanting to the vendee in the case 
supposed. 

The quadruple and double daraages for furtum manifestum and 
nec manifestum were purely penal. The owner could further re- 
cover restitution of thing stolen by a real action (vindicatio) 
or its equivalent in a personal action (condictio furtiva), Inst. 
4, 1, 20. The granting of a personal action in this case, with an 
intentio declaring that the thief was bound to convey the property 
(dare oportere), was anomalous, because the property of thing stolen 
was not in the thief but in the owner, 4 § 4. 

If the thing stolen had been destroyed, or if, being money, it 
had been spent or mixed with money of the thief, the property of 
the plaintiff would have been extinguished and condictio would 
be a suitable action. If the property existed in the hands of the 
thief vindicatio was the proper action. The object of the legis- 
lator in allowing the plaintiff in any case to sue by condictio was to 
relieve him from the necessity of ascertaining whether his property 
was safe or had been consumed. If we ask why, instead of using 
the intentio, Si paret dare oportere, 4 $ 4, which might be inconsis- 
tent with the truth, the plaintiff did not use the formula, Quidquid 
paret dare facere oportere, which, as including compensation or simple 
restitution of possession, would always be consistent with truth ; the 
answer is probably what Savigny has suggested, namely, the inten- 











ri. § 209.] DE VI BONORUM RAPTORUM. 439 


tion of the legislator to subject the defendant to the sponsio poenalis, 
the additional forfeiture of a third of the sum in litigation. It is 
true that this is only mentioned as incidental to a condictio for 
peeunia certa credita, 4 § 171, but the penalty may have also 
been recoverable in a claim for certain money stolen (condictio 


furtiva). 


Bethmann-Hollweg, § 95, proposes the following formula for 


the actio furti nec manifesti : 


Demonstratio: Quod Numerius Negidius Aulo Agerio furtum 


fecit paterae aureae, 


Intentio: Si paret ob eam rem Numerium Negidium Aulo Agerio 
pro fure damnum decidere oportere (4 § 37), 

Condemnatio: Quanti paret eam rem fuisse tantae pecuniae 
duplum, judex, Numerium Negidium Aulo Agerio condemna: Si 


non paret, absolve. 


The plaintiff in theft had the option of proceeding by civil action 
or by eriminal prosecution, and Ulpian informs us that the latter 
was the usual course, Dig. 47, 2, 98. 


DE VI BONORUM BAPTORUM. 


$ 209. Qui res alienas rapit, tene- 
tur etiam furti. quis enim magis 
alienam rem inuito domino contrec- 
tat quam qui (v?) rapit! itaque 
recte dictum est eum improbum 
furem esse. sed propriam actionem 
eius delicti nomine praetor intro- 
duxit, quae appellatur ui bonorum 
raptorum, et est intra annum quad- 
rupli [actio], post annum simpli. 
quae actio utilis est, etsi quis unum 
rem, licet, minimam, rapuerit. 


$ 209. Rapine or robbery is 
chargeable as theft, for who more 
handles the property of another 
against the will of the owner than 
the robber? who has been well 
denominated an audacious thief. 
However, as a special remedy for 
this offence the praetor has intro- 
duced the action for rapine with 
violence; which may be brought 
within a year for four times the 
value, after a year for simple 
damages; and which lies when 
only a single thing of the slightest 
value has been taken with violence. 


Keller, Der Rém. Civil Process § 33, quoted by Bethmann- 


Hollweg, § 96, gives the following formula: Recuperatores sunto: 
Quantae pecuniae paret dolo malo Numerii Negidii vi hominibus 
armatis coactisve damnum datum esse. Aulo Agerio bonave rapta, 
dumtaxat sestertium tot millium, tantae pecuniae quadruplum, 
Recuperatores, Numerium Negidium Aulo Agerio condemnate: si 





440 . DE OBLIGATIONIBUS. [11. $ 209. 


non paret, absolvite. The party aggrieved might either proceed by 
civil action or by criminal prosecution under the lex Julia de vi 
publica et privata. This law, enacted either by Augustus or by 
Julius Caesar, made the criminal guilty of public or armed violence, 
liable to deportation; the criminal guilty of private or unarmed 
violence, to confiscation of a third of his goods, Inst. 4, 18, 8. 

The quadruple damages in the civil action of rapine were not 
purely penal as in the action of furtum manifestum, but included 
the restitution of the property or its value, 4 $ 8, cf. Inst. Just. 4, 
2 pr. The penal damages for rapine were therefore only three times 
the value of the goods plundered, that is, less than the damages in 
furtum manifestum. If, however, the robber was taken in the act, 
he was chargeable, as Gaius explains, with furtum manifestum. 

The lex Cornelia repetundarum passed by the dictator Sylla, 
B.C. 81, instituting a criminal action against governors of provinces 
guilty of extortion : the formula Octaviana or actio quod Metus causa, 
introduced by the praetor Octavius, father of Augustus, B.c. 79: and 
the actio Vi bonorum raptorum, introduced by the praetor Lucullus, 
B.C. 77, all fall within the space of four years and indicate the 
lawlessness generated by the civil wars in the time of Sylla. 

Robbery, like theft, requires dolus malus, that is, criminal inten- 
tion. If then a man, believing himself to be rightful owner, 
violently invaded lands or violently seized movable goods, he was 
not guilty of robbery; but, by a constitution of the emperors 
Valentinian, Theodosius, and Arcadius, enacted a.p. 389, in order to 
repress violence, and deter people from taking the law into their 
own hands, the offender, if mghtful owner, forfeited the property 
to the person dispossessed ; if not rightful owner, was condemned, 
besides restitution of possession, to forfeit the value of the property, 
Cod. 8, 4, 7. This constitution increased the civil penalty recover- 
able for violent dispossession by the interdict unde vi, 4 § 154. 
By the interdict unde vi no penalty was originally recoverable for 
violent, but unarmed, dispossession of one whose own possession 
was tainted by an origin, violent, clandestine, or permissive: and 
for either armed or unarmed dispossession the penalty, as far as the 
property in question was concerned, was only restitution of pos- 
session, By the constitution of the three emperors the civil penalty 
of all violent disseisin was loss not only of possession but of property ; 
and subsequently to this constitution, the interdict unde vi ceased to 
make a distinction between armed and unarmed dispossession. 


m. $$ 210-219.] DE LEGE AQUILIA. 441 


This constitution may be regarded as the final blow struck by the 
Roman legislator at the archaic form of remedial procedure— private 
violence or self-redress. In archaic society, if society it could 
be called, before the establishment of central authority, publie 
tribunals, and police or executive functionaries, such was the only 
possible means of redress; and such redress was recognized and 
permitted by primeval law, if the sentiments of the tribe at such a 
period can be called by the name of law. 

Among the German races the disorder implied by the toleration 
of Feud or private war was gradually mitigated by the introduction 
of certain Truces, or temporary or local Peaces: the Truce of the 
King, prohibiting private war within the precincts of the royal 
residence: the Truce of the Church, giving to the fugitive wrong- 
doer an asylum in the sanctuary: the Truce of the Assembly, ex- 
cluding the prosecution of feuds from the place where the Hundred 
was assembled: and the Truce of the Town, Village, or House, pro- 
tecting the offender from homicidal attack within these limits. 

At some period, too, society interposed and offered to act as arbi- 
trator, and to procure for the aggrieved party satisfaction of the 
wrong he had endured. Accordingly all injuries were rated at a 
certain tariff, and a person who had suffered aggression had the 
option whether he should avenge himself or, in commutation of his 
right of Feud, accept the fine fixed by this tariff, and awarded by a 
tribunal of his countrymen. This mediation of the community, 
which the plaintiff could accept or decline at his discretion, was the 
ongin of actiones poenales, the poena being the inducement offered 
to the plaintiff to make him adopt the more peaceful course, In 
Saxon law the alternative offered to the aggressor was expressed by 
the maxim Biege spere of side other bere: * Buy the spear off the 
side or bear it:’ i.e. make atonement or be liable to Feud. (Kemble.) 

Finally the Peace of the King, proclaimed at each coronation, 
became universal: the state undertook the decision and composition 
of all quarrels ; and private war at all times and in all places was 
interdicted and superseded by recourse to the public judicature. 


DE LEGE AQUILIA. 


$ 210. Damniiniuriae actio con- — $210. Damage unlawfully caused 
stituitur per legem Aquiliam, cuius is actionable under the lex Aquilia, 
primo capite cautum est, (ut) si whose first chapter provides, that 
quis hominem alienum alienamue if a slave of another man, or a 
quadrupedem quae pecudum numero  quadruped of his cattle, be unlaw- 


442 


sit, iniuria occiderit, quanti ea res 
in eo anno plurimi fuerit, tantum 
domino dare daninetur. 


$ 211. Jniuria autem occidere 
intellegitur, cuius dolo aut culpa 
id acciderit; nec ulla alia lege 
damnum quod sine iniuria datur, 
reprehenditur; itaque inpunitus 
est qui sine culpa et dolo malo 
casu quodam damnum committit. 

$ 212. Nec solum corpus in ac- 
tione huius legis aestimatur; sed 
sane si seruo occiso plus dominus 
capiat damni quam pretium serui 
svt, id quoque aestimatur, ueluti si 
seruus meus ab aliquo heres insti- 
tutus antequam iussu meo heredi- 
tatem cerneret, occisus fuerit; non 
enim tantum ipsius pretium aesti- 
matur, sed et hereditatis &missae 
quantitas. item si ex gemellis uel 
ex comoedis uel ex symphoniacis 
unus occisus fuerit, non solum oc- 
cisi fit aestimatio, sed eo amplius 
(id) quoque conputatur quod 
ceteri qui supersunt, depretiati sent. 
idem iuris est etiam si ex pari 
mularum unam uel etiam ex quad- 
rigis e quorum unum occiderit. 


$ 213. Cuius autem seruus oc- 
cisus est, is liberum arbitrium habet 
uel capitali crimine reum facere eum 
qui occiderit, uel hac lege damnum 
persequi. 

$ 214. Quod autem adiectum est 
in hac lege.QVANTI IN EO ANNO 
PLVRIMI EA RES FVERIT, illud efficit, 
si clodum puta aut luscum seruum 
occiderit, qui in eo anno integer 
(fuerit, ut non quanti fuerit, cum 
occideretur, sed quanti in eo anno 
plurimi) fuerit, aestimatio fiat ; quo 
fit, ut quis plus interdum consequa- 
tur quam ei damnum datum est. 


§ 215. Capite secundo (aduersus) 


DE OBLIGATIONIBUS. 


[rrr. $$ 210—219. 


fully slain, whatever within & year 
was the highest value thereof, that 
&mount the offender shall pay to 
the owner. 

$ 211. Unlawful slaying means 
slaying by intention or negligence ; 
for it is only disobedience to law 
that is punished, and in the absence 
of intention and negligence there 
is no penalty for fortuitous damage. 


$ 212. It is not only the body of 
the slave or animal slain that is ap- 
praised, but if the death of & slave 


occasion to the owner the loss of | 


anything in sddition to his price, 
this loss is further estimated ; for 
instance, if my slave has been insti- 
tuted somebody's heir, and before 
by my order he has signified his 
acceptance, he is slain, valuation is 
made not only of his body but also 
of the inheritance I have missed ; 
or if one of two twins, or one of a 
company of players, or one of a 
band of musicians is slain, an esti- 
mate is made not only of his value 
but also of the extent to which the 
remainder are depreciated. The 
same holds if one of a pair of 
mules, or one of four chariot horses 
is killed. 

§ 213. The owner whose slave 
is killed has the option of accusing 
the homicide of a capital crime or 
of suing him under this law for 
damages. 

§ 214. From the words of this 
law, ‘ Whatever within a year was 
the highest value thereof,’ it follows 
that if a slave was lame or blind of 
one eye when he was slain, but had 
been sound within a year, as it is 
not his value at the time of his 
death but his highest value within 
& year that is appraised, a plaintiff 
will sometimes recover more than 
the amount of the loss he has sus- 
tained. 

§ 215. By the second chapter an 


mir. $$ 210-219.] 


adstipulatorem qui pecuniam in 
fraudem stipulatoris acceptam fece- 
rit, quanti ea res est, tanti actio 
constituitur. 

$°216. Qua et ipsa parte legis 
damni nomine actionem introduci 
manifestum est. sed id caueri non 
fuit necessarium, cum actio mandati 
ad eam rem sufficeret; nisi quod ea 
lege aduersus infitiantem in duplum 


agitur. 


$ 217. Capite tertio de omni ce- 
tero damno cauetur. itaque si quis 
seruum uel eam quadrupedem quae 
pecudum (nwmero est, uulnerauerit, 
siue eam quadrupedem quae pecu- 
dum) numero non est, ueluti canem, 
aut feram bestiam, uelut ursum, leo- 
nem, uulnerauerit uel occiderit, hoc 
capite actio constituitur. in ceteris 
quoque animalibus, item in omni- 
bus rebus quae anima carent, dam- 
num iniuria datum hac parte uin- 
dicatur. si quid enim ustum aut 
ruptum aut fractum ( fuerit), actio 
hoc capite constituitur, quamquam 
potuerit sola rupti appellatio in 
omnes istas causas sufficere; ruptum 
(enim intellegitur quod quoquo modo 
corruptum) est. unde non solum 


usta [aut rupta] aut fracta, sed 


etiam scissa et conlisa et effusa et 
quoquo modo uitiata aut perempta 
atque deteriora facta hoc uerbo con- 
tinentur. 

§ 218. Hoc tamen capite non 
quanti in eo anno, sed quanti in 
diebus XXX proxtmis ea res fuerit, 
damnatur is qui damnum dederit. 
ac ne PLVRIMI quidem uerbum adi- 
citur. et ideo quidam putauerunt 
liberum esse iudici ad id tempus ex 
diebus xxx aestimationem redigere, 
quo plurimi res fuerit, uel ad id quo 
minoris fuerit. sed Sabino placuit 
proinde habendum ac si etiam hac 
perte PLvRIMI uerbum adiectum 
esset ; nam legis latorem conten- 


DE LEGE AQUILIA, 


443 


adstipulator who defrauds a prin- 
cipal covenantee by releasing the 
covenantor can be sued for the 
amount of the loss occasioned. 

§ 216. In this chapter, as well 
as in the others, damage is made a 
ground of action, though here the 
provision was unnecessary, because 
the action of Agency would give a 
sufficient remedy, except that the 
lex Aquilia, when the facts are tra- 
versed, gives double damages [and 
Mandate was not yet invented }. 

$ 217. The third chapter makes 
provision for all other damage. 
Therefore if a slave, or & quadruped 
included under the name of cattle, 
is wounded, or if a quadruped not 
included under the name of cattle, 
as a dog, or a wild beast, a bear or 
lion, is wounded or is killed, in this 
chapter an action is provided: or 
if other animals or things inanimate 
are unlawfully damaged, this chapter 
imposes a penalty, for all burning, 
breaking, crushing, is herein made 
actionable: and indeed the single 
word ‘breaking’ covers all these 
offences, for breaking denotes every 
kind of injury ; and not only burn- 
ing, breaking, crushing, but any 
cutting, bruising, spilling, vitiating 
in any way, destroying, or deterior- 
ating, is hereby denominated. 


§ 218. In this chapter it is not 
the value which the thing had with- 
in a year, but which it had within 
the last thirty days, that is charge- 
able on the author of the mischief, 
and it is not expressly the highest 
value. Hence some of the other 
school have held that it was left 
to the discretion of the judex 
whether the damages should be 
measured by the highest value 
or by any lower value which the 
thing may have had within the 


444 


tum fuisse, (quod prima parte eo 
uerbo usus esset. 


$ 219. Ceterum) placuit ita de- 
mum ex ista lege actionem esse, si 
quis corpore suo damnum dederit ; 
tdeoque alio modo damno dato utiles 
actiones dantur, ueluti si quis 
alienum hominem aw pecudem in- 
cluserit et fame  necauerit, aut 
iumentum tam uehementer egerit, 
ut rumperetur ; item & quis alieno 
seruo persuaserit, ut in arborem as- 
cenderet uel in puteum descenderet, 
et ts ascendendo aut descendendo 
ceciderit (e£) aut mortuus fuerit 
aut aliqua parte corporis laesus sit ; 
sed si quis alienum seruum de ponte 
aut ripa in flumen proiecerit et is 
suffocatus fuerit, corpore suo dam- 
num dedisse eo quod proiecerit, 
non difficiliter intellegi potest. 


DE OBLIGATIONIBUS. 


[nr. $$ 210-219. 


last thirty days: but Sabinus held 
that the law must be interpreted as 
if it contained the word ‘ highest,’ 
the legislator having thought 1t 
sufficient to use this word in*the 
first chapter. 

$ 219. It is held that an action 
under this statute only lies when 
the body of the offender is the in- 
strument of mischief; for any other 
mode of occasioning loss a modified 
action must be brought: for in- 
stance, if a slave or quadruped is 
shut up and starved to death, or a 
horse is foundered by hard driving, 
or a slave is persuaded to climb a 
tree or descend a well, and in 
climbing or descending falls and is 
killed or hurt. But if a slave is 
pushed off a bridge or bank into a 
river and there drowned, the body 
of the person who pushed him may 
fairly be held to have caused his 
death. 


§ 210. The lex Aquilia was a plebiscite carried by a tribune 








ealled Aquilius, according to Theophilus, at one of the secessions of 
the plebs, probably at the secession to the Janiculum, B.c. 287, on 
which same occasion the lex Hortensia was carried, making the 
plebiscites binding on the patricians. (See Grueber, Lex Aquilia, 
p. 183.) 

The words of the first clause are preserved in the Digest: Qui 
servum servamve alenum alienamve, quadrupedemve pecudem 
injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare 
domino damnas esto, Dig. 9, 2, 2. ‘If a slave, male or female, 
of another person, or a quadruped of his cattle is unlawfully slain, 
whatever was the highest value it bore in the previous year, such 
sum shall be due as a judgment debt from the slayer to the owner.’ 
Cattle are animals that feed in flocks or herds, and include horses, 
mules, asses, oxen, sheep, goats, and swine, 4 § 171. 

§ 212. The words Quanti ea res est, erit, or fuit occur im the 
eondemnatio or last part of a formula when a defendant is bound to 
indemnify a plaintiff, that is, to pay him a certain value. These 
words have two meanings: they mean either (1) the value of 


ut. $$ 210-219. ] DE LEGE AQUILIA. 445 


a thing to the world in general, i.e. its selling value or market 
value, called verum rei pretium, or vera rei aestimatio; or (2) its 
value to this particular plaintiff, id quod interest actoris, or utilitas 
actoris; a value which might be either less or greater than the 
market value. : 

Where a claim is founded on a contract, say a contract of insur- 
ance against some kind of loss, the market value of the thing lost is 
intended ; and the loss of the plaintiff does not include the damages 
he has indirectly experienced (damnum indirectum) nor the gain he 
has failed to realize (lucrum cessans). When a claim of indemnifi- 
eation is founded on delict or on dolus or culpa (dolose or culpose 
breaeh of contract), the plaintiff's interest is the measure of the 
indemnity to be paid, and includes not only the immediate damage 
that he has suffered, but also the mediate, when it was certain and 
eapable of being foreseen; and not only the positive loss which he 
has suffered but also the gain which he has been hindered from 
realizing. If a creditor has been kept out of a sum of money, he 
will at least be entitled to the current rate of interest: but this is 
not the limit of his claim, if he can prove that the current rate of 
Interest is insufficient to cover the specific disadvantage he has 
suffered from the Mora of his debtor. 

The plaintiff's interest is the measure of the damages he recovers 
by the Interdicte Uti possidetis, Utrubi, and Unde vi; as it is in 
all actions founded on delinquency. The actio vi bonorum raptorum, 
however, is an exception to the rule. Here, in consequence, probably, 
of the peculiar wording of the edict, the measure of damages, the 
simplum or unit to be quadrupled, is not the plaintiff’s interest but 
the market value, Dig. 47, 8, 2, § 18, Savigny, System, Appendix 12. 

Instances of indirect damages due to the act or omission of a 
defendant, are: the depreciation of the remaining horses of a team 
when one has been killed: the penal sum which a plaintiff is liable 
to pay from inability to fulfil another engagement in consequence 
of the default of the defendant: the sale of goods mortgaged by the 
plaintiff as security for another engagement which he cannot fulfil 
in consequence of the default of the defendant: the downfall of a 
house in consequence of the rottenness of the timber supplied by the 
defendant: the infection and extermination of a whole herd of cattle 
in consequence of a diseased beast being sold by the defendant. 

Although in respect of computation claims of indemnity founded 
on breach of contract, whether dolose or culpose, stand on the same 





446 DE OBLIGATIONIBUS. [m. $$ 210—219. 


footing as claims founded on delict; yet an important distinction 
was introduced by Justinian, who enacted that in the former case 
the damages recoverable by this computation of lucrum cessans and 
damnum indirectum should not exceed the double of the immediate 
value, hoc quod interest dupli quantitatem minime excedere, Cod. 7, 
47 ; but left claims founded on delict without any similar limitation. 
In claims founded on breach of contract we may distinguish two 
obligations: the primary obligation as defined by the promise of the 
contractor, and what we have called, 6$ 88, 89, comm., the secondary 
or sanctioning obligation produced by the non-fulfilment of the 
promise. According to the nature of the contract, this non-ful- 
filment will be either the non-performance of some service; or the 
non-delivery of some goods, movable or immovable; or non-delivery 
at the covenanted time or eovenanted place; or negligent custody 
and consequent deterioration or destruction of some article deposited 
by the plaintiff; or eviction of the plaintiff from some property 
transferred to him by the defendant ; or any other omission or non- 
feasance. The secondary obligation of a defendant may be divided 
into two portions, one corresponding to the immediate value to the 
plaintiff of the fulfilment of the primary obligation, the other 
corresponding to his mediate or indirect losses occasioned by its 
non-fulfilment. 'The first portion may be regarded as principal, the 
second as accessory. Similarly the active obligation or claim of 
the plaintiff may be divided into two parts, principal and accessory. 
By the enactment of Justinian, in an action founded on contract, the 
accessory claim can never exceed the principal, or, in other words, 
the total claim of the plaintiff can never exceed in amount twice the 
value of his principal claim. In obligations arising from delict 
there is no primary obligation or principal claim capable of furnish- 
ing a corresponding unit of measurement, The primary obligation 
of the defendant is here a necessity of abstention which is not 
called by the Romans an obligation: and the primary right of the 
plaintiff is a real right, a mght against all the world to freedom 
from molestation ; which real right is not so definite or capable of 
exact valuation or appreciation as a personal claim. Accordingly the 
sanctioning right of the plaintiff in this case is left by Justinian 
without limitation or maximum ; and the judex is directed to assess 
the amount of whatever damage the plaintiff has actually incurred. 
The enactment of Justinian was probably suggested by the 
stipulatio duplae annexed to contracts of sale, whereby in case of 


mu. §§ 210-219.] CONSEQUENTIAL DAMAGES. 447 


eviction the purchaser was entitled to recover from the vendor 
twice the purchase-money. Vangerow, § 571. 

§ 218. The owner of a murdered slave both had a civil remedy 
by the lex Aquilia, and could prosecute criminally under the lex 
Cornelia de sicariis, passed in the dictatorship of Sylla, ».c. 80. 

§ 215. The lex Aquilia, like many other Roman laws, combined 
heterogeneous dispositions. The first and third chapters contain 
remedies for destruction of property, or jus in rem, that is, the 
injury of what is called in English law, a chose in possession; the 
second chapter contains a remedy for the destruction of an obliga- 
tion, or jus in personam, that is, the injury of what is called in 
English law, a chose in action. The power of one promisee, the 
adstipulator, to extinguish by acceptilation the right of the other 
promisee, the principal stipulator, was a consequence of their 
Correality, § 110, comm. 

§ 217. The terms of the third chapter are preserved in the 
Digest: Ceterarum rerum, praeter hominem et pecudem occisos, 
8) quis alteri damnum faxit, quod usserit, fregerit, ruperit injuria, 
quanti ea res fuit in diebus triginta proximis, tantum aes domino 
dare damnas esto, Dig. 9, 2, 27 $ 5. * For property, other than 
slave or cattle slain, damaged by burning, breaking, crushing, 
unlawfully, the value it bore in the thirty days preceding shall be 
due as a judgment debt from the offender to the owner.’ 

§ 219. An action founded on the text of a law was called actio 
directa, an action not founded on the very text of the law, but 
granted by the praetor in the exercise of his judicial authority in 
circumstances which, though different, are similar to those which 
founded the direct action, was called actio utilis. The direct Aquilian 
action could only be brought by the owner (dominus) and when 
damage was immediately caused by a body to a body. If the 
damage was not caused by a body, or not by immediate contact, 
only the actio utilis could be brought. An actio utilis was brought 
in the following cases : 

(1) When the Aquilian remedy was given to a person who was not 
owner but who had a jus in re aliena or was bonae fidei possessor. 

(2) If the damage was not caused by a body, or not by immediate 
contact (damnum corpore corpori datum). 

(3) In a case of damage where neither the agent nor the patient 
was a body. 

(4) In a case of injury to a freeman, 


448 DE OBLIGATIONIBUS. [nr. $$ 210-219. 


There were three varieties of actio utilis: 

(1) actio fictitia, 4 $$ 84-38; 

(2) actions in which there was a variation in the persons named 
in the condemnatio from those previously named in the intentio, as 
in formula Rutiliana, 4 $ 85; 

(3) actio in factum concepta, 4 $6 45-47. 

It is probable that the utilis actio legis Aquiliae was generally in 
the form of actio in factum concepta, though the actio fictitia in jus 
concepta was sometimes used. Cf. 4 § 37. 

The statement in the corresponding passage of the Institutes (4, 8, 
16) that the actio in factum is to be distinguished from the actio 
utilis legis Aquiliae is probably erroneous. There is no trace of such 
a distinction in Gaius, and in the Digest the term actio in factum 
is used in all cases of extension of the statute. It is to be re- 
membered that at the time of the compilation of the Institutes the 
formulary procedure, to which the terms actio utilis and actio in 
factum refer, had long ceased to be the practice. (Grueber, Lex 
Aquilia, pp. 199-208.) 

The mode of growth of Roman law and the relation between 
directa Aquilia and utilis Aquilia may be illustrated by similar 
phenomena in English law, and the relation between the two forms 
of action called Trespass and Trespass on the Case. Trespass, which 
lies for injury to real or personal property or to the person, accom- 
panied with violence, has a more extensive application than directa 
Aquilia, but viewed only as redressing injuries to personal property, 
is nearly coextensive in its range. The original scheme of actions, 
devised in comparatively barbarous times, contained no remedy for 
injuries where there is no act done but only a culpable omission, 
or where the act is not immediately injurious, but only by conse- 
quence or collaterally, or where the idea of force is inapplicable 
because the subject matter is not corporeal or tangible, although 
the injury may be by act direct and immediate in its operation. 
To supply such deficiencies the statute of Westminster, 18 Edward I, 
had directed the clerks in chancery to frame new writs whenever 
the old scheme of writs contained no remedy for a wrong resem- 
bling in its features other wrongs for which a remedy was provided. 
Accordingly, a new writ of Trespass on the Case was framed upon 
the analogy of the old form of Trespass (confer, ad exemplum 
institoriae, § 162 comm.) applying to cases where the injury is not 
immediate, or the subject affected is not corporeal, or the agency is 


in. $$ 220-225. ] DE INIURIIS. 449 


not bodily force. What Edward I. directed to be done by the 
elerks in chancery, and what was done by the introduction of the 
action of Trespass on the Case, was exactly analogous to what the 
praetors did when, in virtue of their judicial authority, they sup- 
plemented the civil law by the introduction of actiones fictitiae and 
actiones in factum. In respect of torts to personal property, the 
latter have nearly the same sphere as Trespass on the Case. The 
innovations of the praetor, however, were not confined to the 
region of torts to personal property, but pervaded every sphere 
and constituted a mass of supplementary law (jus praetorium), 
having to the remainder of the law (jus civile) similar relations 
and equal proportions to those which equity has to common law 
in English jurisprudence. 

All attempts to re-construct the formula in an action for 
damages under the lex Aquilia are to be regarded as highly 
conjectural. Lenel, Das Edictum Perpetuum, p. 158, suggests the 
following as & possible formula, when the action was brought 
adversus infitiantem in duplum, see § 216, 4 § 9. Si paret 
Numerium Negidium illum servum injuria occidisse, quam ob rem, 
quanti is servus in eo anno plurimi fuit, tantam pecuniam 
Numerium Negidium Aulo Agerio dare oportet, tantae pecuniae 
duplum, judex, Numerium Negidium Aulo Agerio condemna: si 
non paret, absolve. The actio confessoria may, according to Lenel, 
have contained the following demonstratio —quod ille servus 
occisus est, quem Numerius Negidius injuria se occidisse, fassus 
est. 

DE INIURIIS, 


$ 220. Iniuria autem committitur 
non solum cum quis pugno puta 
aut fuste percussus uel etiam wer- 
beratus erit, sed ettam si cui conui- 
cium factum fuerit, siue quis bona 
alicuius quasi debitoris sciens eum 
nihil sibi debere proscripserit, siue 
quis ad infamiam alicuius libellum 
aut carmen scripserit, siue quis 
matrem familias aut praetextatum 
adsectatus fuerit, et denique aliis 
pluribus modis. 

$ 221. Pati autem iniuriam uide- 
mur non solum per nosmet ipsos, 
sed etiam per liberos nostros quos 
in potestate habemus; item per 


$ 220. Outrage is inflicted not 
only by striking with the fist or a 
stick or a whip, but by scandalous 
vociferation, or by maliciously seiz- 
ing and advertising for sale under 
an order of the praetor the goods 
of a person as if he were insolvent 
or an absconding debtor, or by 
writing defamatory prose or verse, 
or by constantly following a ma- 
tron or youth wearing the prae- 
texta, and by many other modes. 

§ 221. Outrage may be suffered 
either in one’s own person, or in 
the person of a child in our power, 
or of a wife though not in our hand. 


eg 


450 


uxores nostras, guamuts in manu 
nostra (non) sint, itaque si filiae 
meae quae Titio nupta est, iniuriam 
feceris, non solum filiae nomine 
tecum agi iniuriarum potest, uerum 
etiam meo quoque et Titii nomine. 


$ 222. Seruo autem ipsi quidem 
nulla iniuria intellegitur fieri, sed 
domino per eum fieri uidetur; non 
tamen isdem modis quibus etiam 
per liberos nostros uel uxores in- 
iuriam pati uidemur, sed ita cum 
quid atrocius commissum fuerit, 
quod aperte in contumeliam domini 
fieri uidetur, ueluti si quis alienum 
seruum uerberauerit; et in hune 
casum formula proponitur. at si 
quis seruo conuicium fecerit uel 
pugno eum percusserit, non pro- 
ponitur ulla formula, nec temere 

nti datur, 

$ 223. Poena autem iniuriarum 
ex lege Xii tabularum propter mem- 
brum quidem ruptum talio erat; 
propter os uero fractum aut conli- 
sum trecentorum assium poena erat, 
si libero os fractum erat; at si 
Seruo, CL; propter ceteras uero 
iniurias XXY assium poena erat con- 
stituta. et widebantur illis tem- 
poribus in magna paupertate satis 
idoneae istae pecuniariae poenae. 

§ 224. Sed nunc alioiure utimur. 
permittitur enim nobis a praetore 
ipsis iniuriam aestimare, et iudex 
uel tanti condemnat quanti nos 
aestimauerimus, uel minoris, prout 
ei uisum fuerit. sed cum atrocem 
iniuriam praetor aestimare soleat, 
Bi simul constituerit quantae pecu- 
niae eo nomine fieri debeat uadimo- 
nium, hac ipsa quantitate taxamus 
formulam, et iudex quamus possit 
uel minoris damnare, plerumque 
tamen propter ipsius praetoris auc- 
toritatem non audet minuere con- 
demnationem., 


DE OBLIGATIONIBUS, 


[rr. $$ 220-225. 


So that if you insult my daughter 
married to Titius, but not passed 
out of my power into his hand, you 
are suable for outrage in three cu- 
mulative actions, in her naine, in 
my name, in the name of her hus- 
band. 

$222. A slave cannot be out- 
raged himself, but his master may 
be outraged in his person, not how- 
ever by all the acts whereby he 
might be outraged in the person of 
a child or wife, but only by atro- 
cious assaults, clearly tending to 
dishonour the master, for instance, 
by flogging the slave; and for this 
affront a formula is provided in the 
praetors album: but for verbal 
abuse of a slave, or striking him 
with the fist, no formula is pro- 
vided, nor would an action be 
readily granted. 

$ 223. The penalty of outrage in 
the Twelve Tables for a limb broken 
was retaliation: for a bone broken 
or bruised three hundred asses, if 
the person injured was a freeman ; 
one hundred and fifty if he was a 
slave; for other injuries twenty-five 
asses; and in those days of exces- 
sive poverty such sums seemed an 
adequate reparation. 


$ 224. The rule now in use is 
different : the plaintiff is permitted 
by the praetor to put his own esti- 
mate on the outrage, and the judex 
may either condemn the defendant 
in the whole of this sum, or in a 
lesser sum at his discretion. Atro- 
cious outrage, however, is generally 
for the praetor to estimate; and 
when he has once fixed the sum in 
which the defendant must give se- 
curity to appear at tbe trial, the 
plaintiff inserts the same sum in 
the formula; and the judex, though 
he has the power of condemning 
ihe plaintiff in less, generally, out 
of deference to the praetor, will not 
venture to reduce the condemnation. 





ur. $$ 220-225.] 


$ 225. Atrox autem iniuria aes- 
timatur uel ex facto, ueluti si quis 
ab aliquo uulneratus aut uerberatus 
fustibusue caesus fuerit; uel ex 
loco, ueluti si cui in theatro aut in 
foro iniuria facta sit; uel ex per- 
sona, ueluti si magistratus iniuriam 
passus fuerit, uel senatori ab humili 
persona facta sit iniuria, 


DE INIURIIS, 


451 


$ 225. Outrages are atrocious 
either by the act, as when & man is 
wounded, horse-whipped, or beaten 
with a stick ; or from the place, as 
when an affront is offered in the 
theatre or the forum ; or from the 
persons, as when a magistrate or 
a senator is insulted by one of in- 
ferior rank. 


$ 220. Injuria in this chapter denotes not any wrongful or un- 
lawful act, but contumelious wrong, wrong tending to degradation, 
a violation of the right to respect, honour, reputation; such as libel, 
malicious prosecution, assault and battery, and the like. 

§ 221. If the husband were a filiusfamilias, the offender would be 
liable to a fourth action, on the part of the father of the husband. 
In each of these actions the damages might be different, being 
measured by the varying dignity of the party dishonoured by the 
outrage, § 225. 

Outrage, like theft and robbery, and unlike damage under the 
lex Aquilia, requires dolus malus, or unlawful design. In outrage, 
as in other torts, the plaintiff had his option of proceeding civilly 
or criminally, Inst. 4, 4, 10. 

Lenel, § 190, suggests the following as the formula of the actio 
injuriarum, Quod dolo malo Numeri Negidii Aulo Agerio 
pugno malo percussa est, qua de re agitur, quantam pecuniam 
vobis bonum aequum videbitur ob eam rem Numerium Negidium 
Aulo Agerio condemnari, dumtaxat HS, ..., tantam pecuniam, 
8i non plus quam annus est, cum de ea re experiundi potestas fuit, 
recuperatores, Numerium Negidium Aulo Agerio condemnato si 
non paret absolvito. 

In the Roman law in force at the present day, as the basis or 
Common Law of German jurisprudence, bilaterally penal suits 
appear to be obsolete, with the exception of actio Injuriarum ; and 
here the modern plaintiff has his election between pecuniary dam- 
ages and an apology or revocation of the injurious utterance. An 
inquiry into the reason why the actio injuriarum alone has survived 
will illustrate the nature of bilaterally penal suits. Their principal 
object, as already suggested, was to induce the aggrieved party to 
abstain from the remedy offered him in archaic society, self-redress 
or private revenge. In the case of other wrongs such inducement 
is no longer necessary. But in the case of Affront or Dishonour the 

Gg 





452 DE OBLIGATIONIBUS. [r1. $$ 220—225. 


effect of the modern code of honour has led the moderns even more 
than the ancients to prefer the archaic institution of Feud or private 
war, as embodied in the Duel, to an unromantic appeal to the public 
tribunals. Here, then, the mducement to abstain from self-help, 
which elsewhere is not needed, is still required. 

Theft and Rapine are removed in the present day from the Penal 
branch of the Private code to the Criminal code; that is, are not 
punished at the discretion of a private plaintiff, but by the action of 
& public prosecutor. Savigny, Law of Obligation, § 84. 

Gaius seems to have been misled by a double meaning of Injuria 
when he connects the actio Injuriarum with the redress given by 
the Twelve Tables for grievous bodily harm, § 228. There seems to 
be no real connexion between bodily harm and dishonour, although 
both may have been denoted in Latin by the word Injuria. 

In actions on Delict, as opposed to Real actions and actions on 
Contract, the liability of a defendant necessarily implies that he is 
convicted either of Dolus or of Culpa, unlawful intention or unlaw- 
ful negligence, § 211: there is no liability for damnum absque 
injuria, 

The opposite of Negligence is Diligence, vigilance, attention, 
which, like Negligence, admits of an infinite variety of gradations. 

Actions under the lex Aquilia, instituted to recover penalties for 
unlawful damage, have this peculiarity that, when Culpa is once 
established, the amount of the defendant’s liability does not depend 
on its degree. 

In actions founded on Dispositions, that is on Contract and quasi- 
contract, the liability of the defendant depends on the degree of his 
negligence. In some relations a man is bound to make good losses 
occasioned by slight negligence: in others he is only compelled to 
indemnify for the consequences of gross negligence. 

The terms, Gross and Slight, like other quantitative terms, have 
no positive signification until we fix upon some unit of measure- 
ment or standard of comparison to which any given instance may 
be referred and by which it may be measured. 'Two standards 
are frequently employed by the Roman jurists: the vigilant care 
(exacta diligentia) of a good man of business (diligens pater- 
familias, homo frugi) and the care which a given individual habi- 
tually bestows on his own interests (suus modus, diligentia quam 
suis rebus adhibere solet) Slight negligence is the absence of the 
diligence of the careful man of business; gross negligence falls 





nr.$$220-225. DILIGENCE, NEGLIGENCE. 458 


considerably below this standard. Diligence and negligence, when 
referred to the standard of the careful man of business, are some- 
times called abstract or absolute; when referred to the conduct of 
the individual where his own interests are concerned, concrete or 
relative. Relative negligence is not further subdivided, like absolute, 
into slight and gross. 

The degree of diligence required of a man in any relation and the 
standard by which it is judged depends generally on the question 
whether he is benefitted or not benefitted by the relation. He who 
derives no benefit from it, e. g. the depositary, lender, tutor, curator, 
is only answerable for dolus and culpa lata, is only required to show 
relative diligence. If his carelessness is relative as well as absolute, 
i.e. if it is greater than he shows in his own affairs, it is not dis- 
tinguished from culpa lata and dolus. [English law, it may be 
observed, exacts a greater amount of diligence than this from 
Trustees, although they are unremunerated.| It might at first 
seem that Agency (mandatum) formed an exception to this rule, for 
businesslike care (exacta diligentia) is required of the Agent (man- 
datarius) whether authorized (procurator) or unauthorized (nego- 
tiorum gestor); and yet the agent, like the depositary, i8 said to be 
unremunerated. Agency, however, was not really gratuitous, the 
honorarium of the agent, as we have seen, though not recoverable 
in an ordinary action before a judex, being recoverable at the 
tribunal of the praetor in the exercise of his cognitio extraordinaria. 

He who derives advantage from a contract or disposition is re- 
quired to show businesslike care, and is responsible for abstract or 
absolute negligence, though slight; nor does it matter whether he 
is exclusively advantaged by the relation, like the depositor and the 
gratuitous borrower for use (commodatarius), [with whom, after the 
previous remarks, we must not class the principal or mandator]; or 
whether both parties to the disposition derive a benefit from it, e. g. 
vendor, vendee, locator, conductor, mortgagor, mortgagee. 

Exceptions to this rule, however, are to be found in the cases of 
the partner, the tenant in common (communio), the husband in 
respect of the dotal estate, the coheir, the colegatee. In these 
relations both parties have an advantage, and yet their diligence is 
only estimated by the relative standard: they have to show as 
much care as they show in their own affairs; not more, apparently, 
than the depositary or tutor; not the absolute care of diligens 
paterfamilias. 


454 . DE OBLIGATIONIBUS. 


The old trichotomist division of culpa into lata, levis, and levis- 
sima, is now generally abandoned, levissima disappearing, and 
relative negligence, like culpa lata, being assimilated to intentional 
wrong (dolus). 

Under the head of Obligatio ex delicto should be placed, ac- 
cording to Savigny, the doctrine of PossEssion (Interdict-posses- 
sion), or, rather, of Dispossession, with its remedies, the Interdicts 
Utrubi, Uti possidetis, and Unde vi. This would agree with the 
Roman arrangement: at least the Roman juriste, instead of re- 
cognizing in Possession a primary right, imposing a negative 
obligation on all the world (jus in rem), were content with re- 
garding Dispossession as a wrong imposing a secondary positive 
obligation on the individual dispossessor, and treated all the pos- 
sessory Interdicts as actions ex delicto, 4 § 140, comm. 

But the true place of Possession seems indicated by Vangerow 
who distinguishes between the Interdicta Retinendae and Recu- 
perandae possessionis. The Interdictum Recuperandae possessionis 
i. e. the Interdict Unde vi, is really based on obligatio ex maleficio, 
and belongs to Penal jurisprudence: whereas Possession as con- 
templated by the Interdicta Retinendae possessionis, i.e. the In- 
terdicts Uti possidetis and Utrubi, is a primary right demanding 
universal recognition (jus in rem) that has its place in the code 
regulating Dominion : and the interdicts allotted for ite protection, 
though nominally based on obligatio ex delicto are really coordinate 
not with Penal actions, but with Real actions or Vindieatio. Gaius 
only deals with Possession and possessory Interdicts as belonging to 
the code of Procedure, without indicating their position in the code 
of Substantive law. 


BOOK IV 


DE ACTIONIBUS. 








$ 1. |— quot genera ac- 
tionum sint, uerius uidetur duo esse, 
in | rem et in personam ; nam qui 
III] esse dixerunt ex sponsionum 
generibus, non animaduerterunt 
quasdam species actionum inter 
genera se rettulisse. 

$ 2. In personam actio est qua 
agimus cum aliquo qui nobis uel ex 
contractu uel ex delicto obligatus 
est, id est cum intendimus DARE, 
FACERE, PRAESTARE OPORTERE. 


§ 3. In rem actio est, cum aut 
corporslem rem intendimus nos- 
iram esse, au£ ius aliquod nobis 
conpetere, ueluti utend: aut utendi 
fruendi, eundi agendi aquamue du- 
cendi uel altius tollendi prospicien- 
diue; (aut cum) actio ex diuerso 
aduersario est negatiua, 


$ 4. Sic itaque discretis actioni- 
bus certum est non posse nos rem 
nostram ab alio ita petere 81 PARET 
EVM DARE OPORTERE. nec enim 
quod nostrum est, nobis dari potest, 


* $1. We have now to treat of 
Actions, which fall into two classes, 
being either Real or Personal: for 
those who count four classes, in- 
cluding the forms of sponsio, com- . 
mit the error of co-ordinating sub- 
classes with classes. 

$ 2. A Personal action seeks to 
enforce an obligation imposed on 
the defendant by his contract or 
delict, that is to say, 1s the conten- 
tion that he is bound to transfer 
some dominion or to perform some 
service or to repair some loss. 

$3. A Real action is my claim 
of some dominion or some frac- 
tion of dominion, as a right of use 
or usufruct of a thing belonging 
to my neighbour, a right of horse- 
way or carriage-way through his 
land, of fetching water from a 
source in his land, of raising my 
house above a certain height, or of 
having the prospect from my win- 
dows unobstructed ; or the opposite 
contention of my neighbour, his 
denial that I have any such fraction 
of dominion. 

§ 4. Real and Personal actions 
being thus distinguished, it is clear 
that I cannot demand my property 
from another in the following form; 
‘If it be proved that the defendant 








"456 


cum scilicet id dari nobis intellega- 
tur quod (ta datur, ut) nostrum 
fiat; nec res quae (nostra tam est), 
nostra amplius fieri potest. plane 
odio furum, quo magis pluribus 
actionibus teneantur, receptum est, 
ut extra poenam dupli aut quad- 
rupli rei recipiendae nomine fures 
etiam hac actione teneantur si 
PARET EOS DARE OPORTERE, quam- 
uis sit etiam aduersus eos haec 
actio qua rem nostram esse peti- 
mus. 


DE ACTIONIBUS. 


[rv. $$ 1-9. 


is bound to convey such property 
to me. What is my own cannot be 
conveyed to me, for conveyance to 
me makes a thing mine, and what 
is already mine cannot be made 
more mine than it is. Yet, for the 
prevention of theft and multiplica- 
tion of remedies against the thief, 
besides the penalty of twice the 
value of the thing stolen awarded 
against the thief not caught in the 
act, and the penalty of four times 
the value against the thief caught 
in the act, the thing itself may be 
recovered by a personal action in 
which the contention is thus 
worded: ‘If it be proved that the 


_ defendant ought to convey the 


§ 5. Appellantur autem in rem 
quidem actiones uindicationes, in 
personam uero actiones quibus DARI 
FIERIVE OPORTERE intendimus, con- 
dictiones. 


$ 6. Agimus autem interdum, ut 
rem tantum consequamur, inter- 
dum ut poenam tantum, alias ut 
rem et poenas. 


$7. Rem tantum persequimur 
uelut actionibus (quibus) ex con- 
iractu agimus. 

$ 8. Poenam tantum perzequimur 
uelut actione furti et iniuriarum et 
secundum quorundam opinionem 
actione ui bonorum raptorum ; nam 
ipsius rei et uindicatio et condictio 
nobis conpetit. 


$ 9. Rem uero et poenam perse- 
quimur uelut ex his causis, ex qui- 
bus aduersus infitiantem in duplum 
agimus; quod accidit per actionem 
iudicati, depensi, damni inturiae 
legis Aqui/iae, aut legatorum nomine 


thing in question,' as well as by the 
real action thus formulated: ‘If it 
be proved that the thing in question 
is the property of the plaintiff.’ 

§ 5. A Real action is called vindi- 
catio; a Personal action, whereby 
we contend that some property 
should be conveyed to us or some 
service performed for us, is called 
condictio. 

§ 6. We sue sometimes only to 
obtain restoration of the object of a 
violated primary right, sometimes 
only for a penalty for its violation, 
sometimes both for restoration and 
for & penalty. 

$7. We sue only for restora- 
tion in (real actions and in) per- 
sonal actions founded on contraet. 

$ 8. We sue only for a penalty in 
actions of Theft and Outrage, and, 
according to some, of Rapine; for 
the object itself of the primary 
right may be recovered either by 
Real or by Conservative (non- 
penal) personal action. 

$9. We sue both for restoration 
and for a penalty in those actions 
where the defendant who denies 
his obligation is condemned to pay 
double, as in the action to recover 
a judgment debt, to recover money 





Iv. $$ 1-9.] ACTIONUM DIVISIO. 457 


quae per damnationem certa relicta paid by a sponsor for his principal, 

sunt. to recover damages for injury to 
property under the lex Aquilia, and 
to recover legacies of a definite 
amount bequeathed by condemna- 
tion of the successor. 


§ 1. From Substantive law Gaius now passes to the law of Pro- 
cedure, confining himself for the most part to its Material as opposed. 
to its Formal aspect: dealing with procedure, that is to say, not so 
far as it is merely the method of realizing pre-existing rights, but 
rather so far as ite stages are titles which, like Dispositions and 
Torte, themselves originate new rights and new obligations. 

If we inquire which code is the earlier in its development, the 
Substantive code or the code of Procedure, the answer is that they 
are essentially contemporaneous: a Substantive code can have no 
actual existence unless there is some method of giving it force, and 
again a code of procedure can have no meaning unless there is a 
substantive law to be administered. But after recognizing that 
the two codes are correlative and necessarily coexistent, we find 
that historically the code of Procedure is prior in the chronological 
order: it attains to a high grade of development, while the Sub- 
stantive code which started into birth at the same time remains 
in a rudimentary undeveloped condition. The tribunals once esta- 
blished by the legislator soon evolve strict rules to govern their 
proceedings, while the legislator is too much occupied with wars 
domestic and foreign to furnish the substantive law which the 
tribunals ought to administer. 

The following contrast of ancient and modern jurisprudence here 
deserves a notice. No primary rights can be conceived without 
sanctioning rights, or rights which arise when the primary rights 
are violated: and again no sanctioning rights can be conceived 
without Actions or modes of evoking the interposition of the 
sovereign power. And, as Rights imply Actions, so reciprocally 
Actions imply Rights. But though, as corresponding or correlated 
terms, Right and Action have a necessary connexion, and the 
existence of one may be inferred from the existence of the other ; 
two systems of jurisprudence may differ as to which of these terms, 
the Right or the Action, they deem the more evident; which they 
regard as the datum and which the matter to be proved ; which the 
logical premiss and which the conclusion. 

In Rome the Remedy was regarded as the certainty ; the Right, 





458 DE ACTIONIBUS. _ [xv. 8$ 1-9. 


primary or sanctioning, as the matter of deduction. The forms of 
Action, emphatically so in Statute-process and to a great degree in 
the Formulary system, as crystallized in the law or in the edict, 
were capable of enumeration and incapable of multiplication ; and 
from these forms the citizen might deduce the list of his nghts and 
obligations. The logic of the ancient jurist may be expressed in 
the maxim: Where there is a Remedy there is a Right: There is 
no Right unless there is a Remedy. 

The modern jurist assumes the other, the more ideal of the two 
correlated terms, to be the more evident, and acts upon the converse 
maxim: Where there is a Right there is a Remedy ; or, Given the 
Right, the Remedy follows. The action now is the dependent term: 
its forms are unimportant and indefinitely variable; they are no 
longer crystallizations. If a Right is established and no appro- 
‘priate form of action seems to exist, a new one is forthwith invented, 
and ite fitness to enforce the established right is sufficient to pro- 
cure its recognition by the judicature. Such at least, if not opposite 
goals at which ancient and modern jurisprudence have arrived, ap- 
pear to be opposite directions in which they diverge. Ihering, § 50. 

Sponsio or wager was an indirect mode of submitting questions 
to judicial decision, which seems to have been very commonly 
employed before the introduction of the formulary system. We are 
left to conjecture how its classification enabled any jurist to count 
four classes of action. Its principal division seems to be into the 
sponsio where the pecuniary risk was serious and the penal sum 
important (sponsio poenalis), and the sponsio where the penal sum 
was nominal and not actually exacted (sponsio praejudicialis). Add- 
ing these two divisions to real and personal actions, we should have 
four classes. But as every sponsio, asserting an obligation arising 
from stipulation, was a species of personal action, this classification 
would involve a co-ordination of sub-genera and genera, or sub- 
divisions and divisions. 

A Real action is one which asserts a jus in rem, a Personal action 
one which asserts a jus in personam. A jus in rem, we may 
remember, is a right to certain forbearances, or freedom from 
molestation, corresponding to a duty imposed on all the world; a 
jus in personam is a right to certain performances corresponding to 
a duty imposed on a determinate person. Jura in rem are Status, 
or Property, or Servitude, that is, some fraction of property. Jura 
in personam are Obligations founded on either contract or delicet. 


1v. $$ 1-9.] ACTIONUM DIVISIO. 459 


Primordial rights (life, limb, liberty, honour, &c.), though jura in 
rem, do not give rise to real actions; their violation engenders an 
obligation in the violator, which is purfued by a personal action ex 
delicto. 

A Real action, accordingly, asserts either the status or the pro- 
prietorship of the plaintiff, if we include under proprietorship the 
elements of property called easements or servitudes; a Personal 
action asserts an obligation of the defendant towards the plaintiff. 

Real and Personal actions of Roman Jaw must not be identified 
with those of English law. A Real action in English law may be 
defined with sufficient accuracy for our present purpose as an action 
whereby we claim property in an immovable; a claim of property 
in à movable is made by Personal action. In Roman law a claim 
of property in a movable is a Real action just as much as a claim 
of property in an immovable. A Personal action in Roman law 
asserts no property existing in the plaintiff, but an obligation or 
nght to a conveyance or transmutation of property from the 
defendant to the plaintiff. 

To make the English and Roman classifications coincide, Detinue 
and Trover (actions for the recovery of movable property) ought to 
be classed with real actions. 

A Real action names no party but the Plaintiff in the intentio, 
the principal part of the formula or written instructions of the 
praetor to the judex, in which the plaintiff's claim is specified ; 
a Personal action names the defendant as well as the plaintiff in 
the intentio. For instance, a vindicatio asserting the status of 
3 person contained an intentio to this effect: Si paret Titium ex 
jure Quiritium liberum esse. . 

(We have no record of the precise form of the intentio in a con- 
troversy of status. We know that in a question of libertas (liberalis 
causa), until the time of Justinian, the person whose freedom was 
in dispute could not be either plaintiff or defendant, his rights were 
advocated by an Assertor, Cod. 7, 17, De assertione tollenda. In 
Justinian's time the formulary system, with its precisely framed 
intentio, no longer existed.) 

A vindicatio asserting property in land or a slave contained an 
intentio in these words: Si paret illum fundum—illum hominem— 
ex jure Quiritium Auli Agerii (Plaintiff) esse. A vindicatio claiming 
not absolute property, but some element of property for instance, 
a rural servitude, contained an intentio to this effect: Si paret jus 


460 DE ACTIONIBUS. [1v. $$ 1-9. 


eundi per illum fundum ex jure Quiritium Aulo Agerio competere, 
§ 8. Cf.$$ 92, 98. 

A Personal action, on the contrary, named in the intentio the 
defendant, who was alleged to be under an obligation to the 
plaintiff. E.g. if the plaintiff alleged that the defendant lay under 
an obligation to pay him a certain sum of money, the intentio 
was in this form: Si paret Aulo Agerio Numerium Negidium 
(defendant) sestertium decem millia dare oportere, $4. (Perhaps also 
the intentio in the claim of servitude, contained the words: invito 
Numerio Negidio, i. e. named the defendant.) 

The word Dare is used in the Intentio of a Condictio Certi, 1. e. 
an action wherein the plaintiff asserts that the defendant is under 
an obligation to convey quiritary property in a determinate thing, 
whether a sum of money or any other subject of property, a certain 
slave, certain corn, certain land. E.g. Si paret Numerium Negidium 
Aulo Agerio sestertium decem millia—tritici Africi optimi centum 
modios—iter per illum fundum ad illum fundum—dare oportere. 

The word Facere never appears to stand alone in an intentio, but 
in its stead we have Dare facere in the Intentio of Condictio Incerti, 
that is, of an action to enforce a claim of an uncertain amount, 
a claim of any service but the transfer of quintary property m 
a certain thing, that is, to enforce any obligation (except those 
expressed by Praestare) not included under Dare as above defined. 
E. g. Quidquid paret Numerium Negidium Aulo Agerio dare facere 
oportere, $ 5 comm. 

Praestare does not appear to have ever been used in the Intentio 
of a Formula. Praestare is a term of wider meaning than the two 

preceding, and appears specifically to denote reparation for any 
‘harm, compensation for any loss, the fulfilment, that is, of a delictual 
obligation. It is also used in connection with the obligation ex 
fide bona arising out of culpa and dolus relating to Contract. In 
all civil actions founded on Delict the intentio was probably in 
the terms: damnum decidere oportere, § 37. All non-civil or prae- 
torian actions had an intentio in factum concepta. 

§ 3. Negativa. An action respecting a servitude was either 
Confessoria or Negativa. If the plaintiff claimed a servitude over 
the land or house of the defendant, his action was called Con- 
fessoria; if he denied that his own land or house was subject to 
a servitude, his action was called Negativa (or Negatoria) in rem 
actio. In Confessoria the intentio was of the form: jus mihi esse, 





1v. $$ 1-9.] ACTIONUM DIVISIO. 461 


invito te, utendi fruendi: in Negatoria of the form; jus tibi non 
esse, me invito, utendi fruendi. In this action the plaintiff, probably, 
was not bound to prove a negative, but only the existence of his 
own dominion; it would then be incumbent on the defendant to 
prove affirmatively a limitation of this dominion. 

The coexistence of actio confessoria and actio negatoria with the 
antithesis of Positive and Negative servitudes is at first sight 
embarrassing : for we might suppose that an actio Confessoria of 
a jus altius tollendi was equivalent to an actio Negatoria of a jus 
altius Non tollendi ; and that an actio Confessoria of a jus altius Non 
tollendi was equivalent to an actio Negatoria of a jus altius tollendi : 
80 that the law would be encumbered by a redundancy of forms. 

The following appears to be the explanation and to reconcile 
statements in our authorities which at first sight are inconsistent. 
The nature of the Servitude, Positive or Negative, alleged by the 
plaintiff and, consequentially, the character of the action, Confessoria 
or Negatoria, which he instituted, depended on the nature of the 
facts on which he relied as his title and on the nature of the allega- 
tions by which the defendant opposed his claim. 

The plaintiff asserted & nght of raising the height of his house 
by an actio Confessoria of a jus altius tollendi, consistently 
with the statement in § 3, if he alleged the Extinction of a 
former jus altius Non tollendi, i.e. the recovery of his original 
freedom ; for we have mentioned, 2 $ 81, that the extinction of an 
Urban servitude could only be aecomplished by the erection of 
a contrary or antagonistic servitude: he asserted it by an actio 
Negatoria of a jus Non altius tollendi; consistently with Dig. 8, 5, 
4 § 7, (competit etiam de servitute actio domino aedificii neganti 
servitutem se vicino debere), if he denied that such a jus Non altius 
tollendi had ever existed. 

Similarly a right of prohibiting a neighbour from raising the 
height of his house would probably be asserted by actio Confessoria 
of jus Non altius tollendi if the defendant denied that such a right 
had ever existed: by actio Negatoria of jus altius tollendi, con- 
sistently with Inst. 4, 6, 2, (si quis intendat jus non esse adversario 
. . . altius tollendi . . . istae quoque actiones in rem sunt sed Nega- 
tivae), if the defendant contended that, though it once existed, it 
had been extinguished by usucapio libertatis. 

. Whether an action was Confessoria or Negatoria was perhaps 
not manifest on the face of the intentio but depended on the 


462 DE ACTIONIBUS, [xv. $$ 1-9. 


nature of the facts by which the intentio was supported. For in- 
stance, in Dig. 8, 5, 4 § 7, where Ulpian is apparently speaking of 
actio Negativa of jus Non altius tollendi, he presently adds: hoc 
igitur intendo, habere me jus altius tollendi invito eo cum quo ago: 
terms which seem more appropriate for expressing an actio Con- 
fessoria of & jus altius tollendi; and which probably would express 
such an action, if the plaintiff intended to aver a reacquisition of 
his original freedom. | 

In both Confessoria and Negatoria the first proof was incum- 
bent on the plaintiff. The plaintiff Negator of jus Non altius 
tollendi or Confessor of jus altius tollendi had first to adduce proof 
in support of his contention— which in this case would be simply 
to prove the fact of his dominion— before the defendant was called 
upon to prove his opposite contention; and the plaintiff Confessor 
as dominant owner of a servitude must begin with adducing proof 
of its existence before the defendant is called upon to disprove its 
existence or to prove ite extinction. Cf. § 88, comm. 

The abolition in England of real actions has destroyed most of 
the likeness that once existed in the remedies provided by English 
law for the protection or impeachment of Incorporeal hereditaments 
(more or less identical with the rights which the Romans called 
Servitudes) and the remedies by which at Roman law Servitudes 
were protected or impeached. Before the abolition of Real actions 
each incorporeal hereditament was asserted or contested by some 
Real action corresponding either to actio Confessoria or to actio 
Negatoria. After their abolition the only remedy is Trespass or 
Trespass on the case (or their modern equivalents), personal actions 
which procure not restitution of a real right, but satisfaction in 
damages for injury sustained by its contravention, and which will 
lie as often as the wrong is repeated: or the Court of Chancery will 
stay the contimuance or progress of a wrong by the issue of an 
Injunction. 

As the absolute right of Dominion is supplemented by a less 
perfect right, the right of Possession, protected by possessory inter- 
dicts instead of vindicatio, the remedy of Dominion ; so the fraction 
of Dominion or perfect right which forms a Servitude is sup- 
plemented by an imperfect right, a right, of Quasi-possession, also 
protected by Interdicts, some identical with those which protect 
Dominion, some varying with the nature of the Servitude, § 139. 

§ 4. Gaius points out that the Roman law of his day was 








rv. $$ 1-9.] ACTIONUM DIVISIO. 463 


illogical in allowing stolen property to be recovered by Personal 
action, cf. Inst. Just. 4, 6 $$ 14, 19. No translation of property is 
operated by theft. Roman law contained no disposition similar to 
that of English law, that property in stolen goods is transmuted 
by sale in market overt. Even in the hands of a third person, an 
innocent purchaser, the thing remained the property of the original 
owner, exempt from the potent chemistry of usucapion. It follows 
that the only action logically competent to the proprietor who still 
remained proprietor was a real action, 

In the condictio ex causa furtiva, instead of the intentio, S1 paret 
dare oportere, $ 4, which implies that the plaintiff 1s not proprietor, 
we might have expected him to sue with the intentio, Dare facere 
oportere, which might be merely a form of claiming redelivery of 
possession, and accordingly would be consistent with his proprietor- 
ship. The following is the explanation why the other formula was 
allowed : a condictio certi for a certain sum of money was accom- 
panied by a sponsio poenalis in a third of the sum in dispute, to be 
forfeited by the party who lost the action, § 171. In order to 
subject the thief to this further penalty, the legislator, at the cost 
of an anomaly, permitted the plaintiff to sue with the formula, Si 
paret dare oportere, 

$ 5. Condietio is an actio stricti juris, see §§ 18-20, comm. It 
excludes actions ex fide bona (which had an intentio Quidquid 
dari fieri oportet ex fide bona, § 47), actions ex delicto with 
the exception of condictio furtiva, $ 4, and praetorian actions 
in faetum. It is divided into Condictio incerti, with an intentio 
Quidquid paret dare facere oportere, and Condictio certi, with an 
intentio, Si paret dare oportere. The latter is either brought to 
recover à certain sum of money, and then is specially called Con- 
dictio certi, or is brought to recover land or a slave or any other 
certain thing, and then is called Condictio triticaria. The origin of 
this name is doubtful. Petitio, sometimes equivalent to vindicatio, 
is sometimes also equivalent to Condictio certi. In both cases it 
denotes the certainty and individuality of the property claimed. 

In condictio certi both the intentio (which names certa pecunia) 
and the condemnatio are certae. In condictio triticaria the intentio 
(which names some other certa res) is certa; the condemnatio 
(quanti ea res erit) is incerta. In eondictio incerti both intentio 
&nd condemnatio are incertae, $ 49, comm. 

$6. Rights may be divided into primary and secondary. Primary 





464 . DE ACTIONIBUS. [1v. $$ 1-9. 


rights are antecedent to wrong, and may be divided into status, prim- 
ordial rights, property, and obligation; the title or investitive fact 
which creates them being a condition defining a status or capacity 
of primordial righte, or one of the modes of acquiring property or 
of forming a contract. Secondary or sanctioning rights imply an 
antecedent wrong, and their title is a breach of contract or the 
violation of some real right, statistic, primordial, or proprietary. 

Both these classes of rights and the corresponding duties are 
creations of the law: for every law is both imperative and coercitory ; 
that is, both by its command confers a primary right and imposes 
a corresponding primary duty, and sanctions its command by con- 
ferring a secondary right and imposing a secondary duty, that is, 
by conferring a remedy and employing coercion in the event of 
disobedience. 

The sanctions of the civil law are either reparative and remedial 
or punitory and preventive; in one case the object of the law is 
the RESTORATION of the plaintiff by restitution or compensation, 
and then his primary right is the measure of his redress or sanc- 
tioning right ; in the other case it is the repression of similar wrongs 
by inflicting a PUNISHMENT on the defendant which may operate 
as a terror to himself in future (reformatory) and to other wrong- 
doers (exemplary); and then the sanctioning right may far exceed 
his primary right. Even REsToRATION embraces the mediate as 
well as the immediate value of the primary right, 3 § 212, comm. 

The language of Roman jurisprudence makes no distinction be- 
tween & primary right and a sanctioning right when the sanction is 
purely RESTORATIVE, even though it include the accessory or conse- 
quential value, calling both by the name of the Object (Res). The 
redress directly given by the Roman law under the formulary pro- 
eedure was always pecuniary compensation, and we might have 
expected Roman jurists above all others to distinguish between the 
objects of the plaintiff’s primary and secondary nght; but the in- 
direct result of a real action might be the recovery of specific restitu- 
tion, and it was in view of this type of redress that the Roman 
lawyers were led to speak of the objects of primary and reparative 
secondary rights as identical. 

If we next proceed to inquire what classes of actions are brought 
for reparation or to recover the object of a primary right (rei perse- 
cutio) and what for the recovery of a penalty (poenae persecutio), 
§§ 6-9, we shall have no difficulty in perceiving that real actions and 


rv. $$ 1-9.] ACTIONUM DIVISIO. 465 


actions on contract belong to the former class (rei persecutio); and 
that of actions on delict, a subdivision, which may be called Vindic- 
tive (quae ad ultionem pertinent, quae vindictam continent), such as 
the actio injuriarum, belong to the latter (poenae persecutio). The 
effect of the former is restoration: they leave the plaintiff no richer 
and the defendant no poorer in respect of property than he was at 
first ; whereas the vindictive actions leave the plaintiff, in respect of 
property, richer, and the defendant poorer. But the remaining divi- 
sion of actions on delict, those brought to recover indemnification 
for damage to property, are more ambiguous in character. If we 
merely regard their effect on the plaintiff they seem to be purely 
reparative, for they leave the plaintiff no richer; but if we regard 
their effect on the defendant they seem to be penal, for if the wrong 
done by the defendant was a destruction of property, compensation 
to the plaintiff will leave the defendant poorer. 

We have seen, 8 § 212, that, even under a contract, indemnification 
included indirect losses or the mediate value of the primary right, 
and might amount to twice the immediate value of the primary 
right: and that, founded on delicet, indemnification was not re- 
stricted to any maximum. 

Accordingly, with respect to these semi-penal [unilaterally penal] 
actions, the language of the Roman jurists varies, they are sometimes 
regarded as rei persecutio, and sometimes as poenae persecutio; but 
the latter view predominated, and they have the principal incidents 
of penal actions: they are only maintainable within a year, and are 
not passively transmissible, 1. e. maintainable against the successor of 
the defendant except so far as restorative, 1.e. so far as the successor 
was enriched, unless the suit was commenced (lis contestata) against 
the original wrong-doer, in which case the penal obligation is 
novated, 8 § 180, and becomes passively transmissible; moreover 
they are maintainable against each one of several delinquents for 
the entire damages ; and they can be brought in the form of noxal 
actions against the paterfamilias or dominus, See Grueber, Lex 
Aquilia, p. 275. 

In these cases, accordingly, the plaintiff had not always an 
adequate remedy under the Roman law. English law originally 
followed the rule of Roman law, and no action of Tort, even for 
damage to property, would lie against the executor or administrator 
of the wrong-doer. [The maxim: actio personalis moritur cum 
persona, often used by expositors of English law, must have origi- 

Hh 








466 : DE ACTIONIBUS. [xv. $$ 1-9 


nated in a misprint of personalis for poenalis.] But now, by 8 and 
4 Will. IV, c. 42, an action for injury to property, as opposed to 
actions for slander and the like (vindictive actions, which die with 
the person), is maintainable against the executors and administra- 
tors of the wrong-doer, provided the wrong was committed within 
six months before his death and the action 1s brought within a year 
after his death, if it was an injury to real property, or within 
six months after his executors or administrators have taken on 
themselves administration, if it was an injury to personal property. 
Thus within the limits of this statute the English plaintiff has an 
ampler remedy than the Roman. See Pollock's Law of Torts, 
1 Ch. III. § 2. 

'The distinction of Res and Poena is important in questions re- 
specting the extinction of a suit (1) by death: Vindictive suits 
being incapable of either active or passive transmission (trans- 
mission to the heir of the plaintiff or defendant), Penal suits 
being incapable of passive transmission, Civil suits bemg capable 
of both active and passive transmission: § 111, comm. (2):by pre- 
scription: Penal suits prescribing in a year, Civil suits in thirty 
years: §§ 110-113, comm. (3) by concurrence, i.e. the merger, 
absorption, or alternation of several co-existing suits. The import- 
ance of the distinction of Res and Poena has diminished m con- 
sequence of the desuetude of penal actions. 

Damages in English law means any uncertain amount of money: 
i.e. a claim for damages includes rei persecutio, where the res is in- 
certa, as well as poenae persecutio. An obligation to pay a certain 
sum is called a Debt. 

§ 7. One action upon contract, namely, the action against a de- 
positary, was brought for double the value of the deposit, i.e. was 
partly penal, if the deposit was necessitated by fire, shipwreck, 
tumult, or similar distress. 

$ 8. In Justinian's time the penalty of Rapine was only thrice 
the value of the thing taken with violence, that is, the quadruple 
damages were partly penal, for the actions vi bonorum raptorum 
and the real or personal action to recover the thing taken were not 
concurrent or cumulative, Inst. 4, 6, 19. For a case of quad- 
ruple damages, of which 1 was restorative and $ penal, under 
9 Anne, c. 14, against Gaming, see Stephen's Blackstone, Intro- 
duction, p. 3. 

$9. The actio judicati was brought against a defendant who 





1v. $$ 10-17.] LEGIS ACTIONES, 467 


denied that à judgment had been given against him or that it was 
still unsatisfied. He was liable to be condemned to pay twice the 
amount of the judgment debt, and was required to give security 
judicatum solvi. This security was the modern representative of 
the interposition of a Vindex in the old proceeding of manus 
injectio. In manus injectio pro judicato it seems the Vindex who 
lost the suit was condemned, as a penalty for his tortious inter- 
ference, to pay a sum equal to the original judgment debt; in other 
words, to discharge the debtor he had to pay twice the amount of 
the debt. In manus injectio pura the defendant was his own Vindex, 
and, if he lost, was condemned in double the debt. See $6 21-25. 
The actio depensi [see above, 3 $ 127] was introduced by a lex 
Publilia of uncertain date, and as it was only given to the sponsor, 
would become obsolete when the sponsor was superseded by the 





fidejussor. 


Justinian confined the action of the legatee against the heres for 
twice the value of the legacy to the case of bequests to churches 
and religious institutions. Inst. 8, 27, 7. 


LEGIS ACTIONES. 


$ 10. Quaedam praeterea sunt 
actiones quae ad legis actionem ex- 
primuntur, quaedam sua ui &c po- 
testate constant. quod ut mani- 
festum fiat, opus est ut prius de 
legis actionibus loquamur. 

$ 11. Actiones quas in usu uete- 
res habuerunt, legis actiones appel- 
labantur uel ideo quod legibus 
proditae erant (quippe tunc edicta 
praetoris, quibus conplures actiones 
introductae sunt, nondum in usu 
habebantur), uel ideo quia ipsarum 
legum uerbis accommodatae erant 
et ideo inmutabiles proinde atque 
leges obseruabantur. unde eum 
qui de uitibus succisis ita egisset, 
ut in actione uites nominaret, re- 
sponsum esí rem perdidisse, cum 
debuisset arbores nominare eo quod 
lex Xii tabularum, ex qua de 
uitibus succisis actio conpeteret, 
generaliter de arboribus succisis 
loqueretur. 

$12. Lege autem agebatur mo- 
dis quinque: sacramento, per iudi- 


$ 10. Some actions are moulded 
upon, and contain a reference to, 
the forms of statute-process; others 
are unrelated and independent. 
This requires an examination of 
the older system. 

$ 11. These proceedings are called 
statute-process, either because they 
were appointed by statute before 
the edict of the praetor, the source 
of many new actions, began to be 
published, or because they followed 
the letter of a statute and in form 
were as immutable as law. Thus, 
a man who sued another for cutting 
his vines, and in his action called 
them vines, irreparably lost his right 
because he ought to have called them 
trees, as the Twelve Tables, which 
confer the action, speak generally of 
trees and not particularly of vines. 


$12. There were five forms of 
statute-process, Sacramentum, Ju- 


Hha 


468 


cis postulationem, per condictionem, 
per manus iniectionem, per pignoris 
caplonem. 


DE ACTIONIBUS. 


[1v. $$ 10-17. 


dicis postulatio, Condictio, Manus 
injectio, and Pignoris captio. 


SACRAMENTUM. 


$ 13. Sacramenti actio generalis 
erat ; de quibus enim rebus ut aliter 
ageretur lege cautum non erat, de 
his sacramento agebatur. eaque 
actio proinde periculosa erat | falsi 
—, atque hoc tempore periculosa 
est actio cer|tae creditae pecuniae 
propter sponsionem qua periclitatur 
reus si temere neget, (et) restipula- 
tionem qua periclitatur actor si non 
debitum petat; nam qui uictus 
erat, summam sacramenti praesta- 
bat poenae nomine, eaque in publi- 
cum cedebat praedesque eo nomine 
praetori dabantur, non ut nunc 
sponsionis et restipulationis poena 
lucro cedit aduersario qu? uicerit. 

$ 14. Poena autem sacramenti 
aut quingenaria erat aut quinqua- 
genaria. nam de rebus mille aeris 
plurisue quingentis assibus, de mi- 
noris uero quinquaginta assibus 
sacramento contendebatur ; nam ita 
lege xii tabularum cautum erat. 
(at) si de libertate hominis contro- 
uersia erat, etiamsi pretiosissimus 
homo esset, tamen ut L assibus 
sacramento contenderetur, eadem 
lege cautum est fawore scilicet 
libertatis, ne onerarentur adser- 
tores. 

(11 uersus in C legi nequeunt) 


— 





$ 15. omnes actiones———— 
(5 uersus in C legi nequeunt) 
|——-captus—| 

(5 uersus in C legi nequeunt) 

| ——2ad iudicem ac- 

cipiendum uenirent; postea uero 
reuersis dabatur. ut autem (die) 
xxx iudex daretur, per legem Pin- 
ariam factum est ; ante eam autem 
legem statim dabatur iudex. illud 





$ 13. Sacramentum (Stake or 
Deposit) was the general action, 
for wherever no other mode was 
appointed by law, the procedure 
was by sacramentum. It was at- 
tended with risk to the parties, 
like the modern action to recover 
money lent, wherein the defendant 
and plaintiff by the sponsio and 
restipulatio respectively forfeit a 
penal sum, if unsuccessful The 
praetor took securities for the 
stake, which the vanquished party 
forfeited to the treasury, not, as he 
forfeits the penal sum of the modern 
sponsio or restipulatio, to the victor 
in the suit. 

§ 14. The penal sum of the sa- 
cramentum was either five hundred 
asses or fifty asses; five hundred 
when the subject of dispute was 
valued at a thousand or upwards, 
fifty when at less than a thousand. 
This was provided by the law of 
the Twelve Tables. When, how- 
ever, personal freedom was the sub- 
ject of dispute, however valuable a 
slave the man whose status was 
litigated might be, the penal sum 
was only fifty asses. This was 
enacted by the Twelve Tables in 
favour of liberty, that the vindex 
or assertor of liberty might never 
be deterred by the magnitude of 
the risk. 

§ 15. [When the sacramentum 
was a personal action, that is to 
say, instituted to enforce an obliga- 
tion, after giving securities for the 
stake, the parties left the praetor's 
court, having arranged to reappear 
on the thirtieth day] to receive a 
judex. When they appeared again 
the Praetor nominated a judex. 
This was in pursuance of the lex 


1v. $$ 10-17.] 


ex superioribus intellegimus, si de 
re minoris quam ( 3t) aeris agebatur, 
quinquagenario sacramento, non 
quingenario eos contendere solitos 
fuisse. postea tamen quam iudex 
datus esset, conperendinum diem, ut 
ad iudicem uenirent, denuntiabant. 
deinde cum ad iudicem uenerant, 
antequam apud eum causam pero- 
rarent, solebant brewiter ei et quasi 
per indicem rem exponere; quae 
dicebatur causae coniectio, quasi 
causae guae in breue coactio. 


$ 16. Si in rem agebatur, mo- 
bilia quidem et mouentia, quae 
modo in ius adferri adduciue pos- 
sent, in iure uindicabantur ad hunc 
modum: qui uindicabat, festucam 
lenebat ; deinde ipsam rem adpre- 
hendebat, ueluti hominem, et ita 
dicebat HYNC EGO HOMINEM EX 
IVRE QVIRITIVM MEVM ESSE AIO 
SECVNDVM 8VAM CAVBAM. SICVT 
DIXI, ECCE TIBI, VINDICTAM INPOSVI, 
et simul homini festucam inponebat; 
aduersarius eadem similiter dicebat 
et faciebat; cum uterque uindi- 
casset, praetor dicebat MITTITE 
AMBO HOMINEM ; ill mittebant ; 
qui prior uindica(uerat, ita alterum 
interroga )bat POSTVLO ANNE DICAS 
QVA EX CAVSA VINDICAVERIS ; ille 
respondebat Iv8 FECI SICVT VINDIC- 
TAM INPOSVI; deinde qui prior uindi- 
cauerat, dicebat QVANDO TV INIVRIA 
VINDICAVISTI, D AERIS SACRAMENTO 
TE PROVOCO; aduersarius quoque 
dicebat similiter ET EGO TE; scilicet 
(si de re maioris quam M aeris age- 
batur, D, si de mtnoris,) L asses 
sacramenti nominabant ; deinde 
eadem sequebantur quae cum in 
personas ageretur; postea praetor 
secundum alterum eorum uindicias 
dicebat, id est interim aliquem pos- 
seseorem constituebat, eumque iube- 
bat praedes aduersario dare litis et 
uindiciarum, id est rei et fructuum ; 
alios autem praedes ipse praetor ab 


SACRAMENTUM. 


469 


Pinaria, before which the judex 
was named at once. If the sub- 
ject of dispute was worth less than 
a thousand asses, the stake, as 
before mentioned, was only fifty. 
After the judex was named, they 
gave mutual notice to appear before 
him on the next day but one. At 
the appearance before the judex, 
before the case was fully developed, 
it was stated in a concise and 
summary form, and this summary 
statement was called causae con- 
jectio. 

$ 16. When the sacramentum 
was a real action, movables and 
animals that could be brought or 
led into court were claimed in pre- 
sence of the praetor in the follow- 
ing fashion. The claimant held a 
wand, and grasping the slave or 
thing over which he claimed do- 
minion, said: ‘This man I claim, 
as proprietor, by due acquisition, 
by the law of the Quirites. So as I 
said, see! I have covered him with 
my spear, whereupon he laid his 
wand upon the man. The ad- 
versary then said the same words 
and performed the same acts. 
After both had claimed dominion, 
the praetor said: ‘ Both claimants 
quit your hold,’ and both quitted 
hold. Then the first claimant said, 
addressing the second: ‘ Answer 
me, will you state on what title you 
found your claim ?’ and he replied : 
‘I perfected my title when I covered 
him with my spear.’ Then the first 
claimant said: ‘Since you claim 
him in defiance of law, I challenge 
you to stake five hundred asses 
upon the issue of a trial,’ to which 
the other answered, ‘I accept the 
challenge.’ Or else they wagered 
fifty asses. Then ensued the same 
ceremonies as in a personal action. 
The praetor then awarded to one 
of the claimants possession of the 
thing pending the suit, and made 


479 


utroque accipiebat sacramenti, quod 
id in publicum cedebat.  festuca 
autem utebantur quasi hastae loco, 
Signo quodam iusti dominii; quod 
"mazime sua esse credebant quae ex 
hostibus cepissent; unde in centum- 
wiralibus iudiciis basta praeponitur. 


$17. Si qua res talis erat, ut sine 
incommodo non posset in ius adferri 
uel adduci, ueluti si columna aut 
grex alicuius pecoris esset, pars 
aliqua inde sumebatur; deinde in 
eam partem quasi in totam rem 
praesentem fiebat uindicatio. itaque 
ex grege uel una ouis aut capra in 
ius adducebatur, uel etiam pilus 
inde sumebatur et in ius adfereba- 
tur, ex naue uero et columna aliqua 
pars defringebatur. similiter si de 
fundo uel de aedibus siue de heredi- 
tate controuersia erat, pars aliqua 
inde sumebatur et in ius adferebatur 
et in eam partem perinde atque in 
totam rem praesentem fiebat uindi- 
catio, ueluti ex fundo gleba sume- 
batur et ex aedibus tegula, et si 
de hereditate controuersia erat, 
aeque 
(48 wersus in C perierunt) 
qualem — capiendum 
indicio|—die xxx ad iudicem capi- 
endum praesto esse de|bebant. 





DE ACTIONIBUS. 


[rv. §§ 10-17. 


him bind himself with sureties to 
his adversary to restore both the 
subject of dispute and the mesne 
profits or value of the interim 
possession, in the event of losing the 
cause. Both parties gave pledges 
to the praetor for the penal sum 
which the loser was to forfeit. The 
wand or straw which they wielded 
represented a lance, the symbol of 
absolute dominion, for the best 
title to property was held to be 
conquest. Accordingly the law of 
property is administered in the 
Centumviral court at the present 
day under the symbol of a lance. 

$ 17. If the subject of dispute 
was such as could not conveniently 
be carried or led before the praetor, 
a portion was brought into court, 
and the formalities were enacted 
over it as if it was the whole. If 
it was & flock of sheep or herd of 
goats, & single sheep or goat, or a 
single tuft of hair was brought; if 
it was a ship or column, a fragment 
was broken off and brought; if it 
was land, a clod ; if it was a house, 
a tile; if it was an inheritance. . . . 


on the thirtieth day when they were 
bound to appear in court to receive 
& judge. 


$ 18. The sacramentum or stake was originally deposited with 
the Pontifex and applied, when forfeited, to meet the expenses of 


the public sacrifices; whence its name. 


Afterwards, instead of an 


actual deposit, security [praedes— prae-vades] for the penal sum 
was given by both parties to the praetor. 

In the ceremony as described by Gaius we may distinguish 
three stages: first, an oral pleading or altercation, alluded 





rv. $$ 18-20.] CONDICTIO. 471 


to in later statute-process by the words sicut dixi; ‘secondly, 
& trial by battle, the original method of deciding disputed rights; 
and thirdly, the reference to peaceful adjudication. We may sup- 
pose that on some memorable day in the progress of civilization, 
before the combat had terminated fatally to one of the combatants, 
some Numa Pompilius, of sufficient authority to make so great an 
innovation, interposed and induced the parties to refer the dispute 
to arbitration. The case would afterwards serve as a model and 
precedent to future litigants; but, from a superstitious fear of losing 
the sanction of immemorial custom, the earlier stages of the pro- 
cess would stil continue to be mimicked in solemn pantomime. 
So, in English law, trial by Wager of battle, introduced by William 
the Conqueror, was first partially superseded by the Grand assize, 
or trial by jury, an alternative substituted by Henry II, and was 
finally abolished in the reign of George III. ‘The tenant [defen- 
dant] shall not be received to wage battle, nor shall issue be 
joined, nor trial had, by battle, in any writ of right,’ 59 Geo. ITI, 
ch. 46. 

The use of the rod or wand as representative of the spear, the 
symbol of dominion, may be paralleled in English law by the deli- 
very of a staff as the symbol of power and possession in the convey- 
ance of copyholds. ‘The conveyance of copyhold estates is usually 
made from the seller to the lord or his steward by delivery of a rod 
or verge, and then from the lord to the purchaser by redelivery of 
the same in the presence of a jury of tenants,’ Blackstone, 2, 20. 

§ 16. The specification of the title or ground of claim (expressio 
causae) in a real action (secundum suam causam, sicut dixi) was 
probably limited to actions where the subject claimed was a person, 
and was then designed to distinguish whether the person was 
claimed as a son, wife, bondsman (mancipium), or slave. See 1 $ 184, 
comm. Perhaps, however, it was universally required in Statute- 
process though not in the formulary system, 2 $ 48, comm. 


CONDICTIO. 


$ 18. Condicere autem denuntiare 
est prisca lingua. itaque haec 
quidem actio proprie condictio 
uocabatur; nam actor aduersario 
denuntiabat, ut ad iudicem capien- 
dum die Xxx adesset. nunc uero 
non proprie condictionem dicimus 


$18. Condicere in old Latin 
was equivalent to denuntiare, to 
give notice. Hence this action was 
appropriately called condictio (no- 
tice), for the plaintiff used to give 
notice to the defendant to appear 
before the praetor on the thirtieth 





472 


actionem in personam (esse, gua) 
intendimus DARI NOBIS OPORTERE ; 
nulla enim hoc tempore eo nomine 
denuntiatio fit. 


$ 19. Haec autem legis actio 
constituta est per legem Siliam et 
Calpurniam, lege quidem Silia 
certae pecuniae, lege uero Cal- 
purnia de omni certa re. 


$ 20. Quare autem haec actio 
desiderata sit, cum de eo quod 
nobis dari oportet, potuerimus aut 
sacramento aut per iudicis postula- 
tionem agere, ualde quaeritur. 


DE ACTIONIBUS. 


[1v. $$ 18-20. 


day to receive a judge. The 
name is now applied with less 
propriety to a personal action by 
which we sue for a transfer of 
property, for notice forms no part 
of the procedure. 

§ 19. This form of statute-process 
was created by the lex Silia and lex 
Calpurnia, being prescribed by the 
lex Silia for the recovery of a cer- 
tain sum, and extended by the lex 
Calpurnia to the recovery of a oer- 
tain thing. 

$ 20. Why & new action was 
needed, when transfer of property 
could be demanded either by Sacra- 
mentum or by Judicis postulatio, is 
canvassed. 





After completing his aecount of Sacramentum, Gaius proceeded 
to explain the nature of Judicis postulatio. Of its process we have 
a fragment in the formula derived from Valerius Probus, Te, Praetor, 
judicem arbitrumve postulo uti des, ‘I pray you, Praetor, to appoint 
an arbiter or judge. It was apparently the prototype of actions 
ex fide bona, that is, of actions which required an equitable balancing 
of opposite claims, and an assessment by the judex of the damages, 
if any, due to the plaintiff. The actions Finium regundorum, 
Familiae herciscundae, Aquae pluviae arcendae, de arboribus succisis, 
fiduciae, which are mentioned in the Twelve Tables, appear to have 
been tried by an arbiter or arbiters, that is, to have been forms of 
Judicis postulatio. For an account of views of different writers 
respecting the nature of judicis postulatio see Muirhead, Roman 
Law, $ 35. 

The Condictio was unknown to the Twelve Tables, having been 
created by the lex Silia about s.c. 244, and extended by the lex 
Calpurnia about s.c. 284. Its distinctive feature appears to have 
been the sponsio and restipulatio, § 18, a wager or verbal contract 
conditioned for the forfeiture by the vanquished party of one third 
of the sum in dispute, in addition, on the part of the defendant, to 
the original debt. The stake or penalty is called by Cicero legitima 
pars, * statutable sum :* Pecunia petita est certa ; cum tertia parte 
sponsio facta est... . Pecunia tibi debebatur certa quae nunc 
petitur per judicem, in qua legitimae partis sponsio facta est, Pro 








Iv. $$ 18-20. | CONDICTIO. 473 


Roscio, 4, 5: whence we may infer that it was fixed by the lex 
Sila, the statute which created the procedure by condictio. 

At this period the Sacramentum would be practically confined to 
Real actions before the Centumviral Court: Condictio would be the 
appropriate Personal action for recovering a certain sum or thing 
due upon a unilateral contract, real (mutuum), verbal (stipulatio), or 
literal (expensilatio); and Judicis postulatio the appropriate Personal 
action for recovering an uncertain sum due on a bilateral contract, 
and enforcing obligations to perform (facere) rather than to convey. 

The gist (gite) of the civil action of Condictio, i. e. the circum- 
stance whereon it lay, the title or ground of action, was the increase 
of the defendant's fortune or patrimony by the reduction of the 
plaintiff's patrimony without any consideration or equivalent gain to 
the plaintiff. This disturbance the law restored. The simplest, and 
probably the earliest, instance of the principle was mutui datio, 8 $ 90. 
Here the defendant's wealth is increased and that of the plaintiff 
diminished by a voluntary aet of the plaintiff ; but the principle 
equally covers cases where the relation is not knowingly and 
intentionally initiated by the plaintiff, e.g. payment by mistake 
(solutio indebiti) and failure of consideration (causa data, causa 
non secuta) From mutui datio, or actual loan, the Condiction 
was extended to Expensilatio and Stipulatio, both of which, pro- 
bably, were imaginary loans, that is, pacts solemnized and fortified 
by the fiction of a loan. We are expressly informed that this was 
the case with Expensilatio, 2 $ 129, and from etymology (stips— 
pecunia) and the analogy of Nexum (a fictitious weighing out of 
bars of bronze), we may conjecture the same of Stipulatio. 

The introduction of actions stricti juris is probably of more 
ancient date than the introduction of actions based on bona fides ; 
the necessity, that is, of applying the power of the State to 
enforce the class of obligations pursued by Condictio was earlier 
felt than the necessity of compelling men to perform their so-called 
obligations ex fide bona. From the antithesis of strictum jus and 
bona fides it might be imagined that trust, confidence, credit, re- 
liance on good faith, were entirely foreign to civil obligations, and 
were only ingredients in equitable obligations. This is the reverse 
of the truth. Greater confidence (fides) is involved in mutui datio, 
greater risk is incurred by the obligee, who starts by alienating his 
property and making it the property of the obligor, who denudes 
himself, that is, of the remedy of vindicatio, than in any other 


414 DE. ACTIONIBUS. [av. $$ 18-20. 


contracts, most of which leave the promisee, even before the inven- 
tion of personal actions, armed, if need be, with the legal remedy 
of vindicatio. Other contracts we can imagine left to the protec- 
tion of the moral code, to the forum of conscience, to the sanction 
of public opinion, at a time when it was felt that the immense 
confidence implied in a loan for consumption could only exist under 
the aegis of positive law. 

When the short, sharp, and decisive remedy of a civil action had 
once been invented for mutui datio, the ingenuity of contracting 
parties and jurists would soon extend the remedy to other relations 
by means of a fiction of mutui datio. Expensilation, then, and 
Stipulation may be regarded as artifices for transferring conven- 
tions, originally perhaps, from the ethical code to the legal code; 
but certainly, in later times, from the laxer equitable code to the 
more rigorous civil code. A great part, however, of human dealings 
refuses to be governed by pre-determined conditions, and pre- 
arranged, pre-capitulated stipulations. Hence alongside of stipulatio 
and expensilatio existed Real and Consensual contracte; alongside 
of Condietio existed Judieis arbitrive postulatio; alongside of for- 
mulae stricti juris existed formulae ex fide bona. 

The general difference between actiones stricti juris and actiones 
ex fide bona consisted in the greater latitude of discretion allowed 
to the judge in the latter. The principal specific points of difference 
were the following : 

(a) Actiones stricti juris are based on unilateral contracts, which 
only ground an action for one of the parties: actiones ex fide bona 
are based on bilateral contracts, on which both parties can bring 
actio directa ; or on semi-bilateral contracts, on whieh one party can 
bring actio directa, and the other actio contraria. So one-sided were 
condictions or actions stricti Juris that before the time of Marcus 
Aurelius a set-off or counterclaim of the defendant (compensatio) 
could not be pleaded even in the form of Exceptio. Inst. 4, 6, 30. 

(4) Actions stricti juris are governed by a literal interpretation of 
the words of a disposition: in actions ex fide bona the judge inquires 
what was the true intention of the parties; he attends not only to 
express but also to implied terms of a convention, Dig. 3, 5, 6, and, 
to ascertain these, takes notice of local usages, Dig. 21, 1, 81, 20. 
As we distinguish between the Volition or overt act of a delinquent 
and his Intention, so bona fides distinguishes between the expres- 
sions of contractors or the lawgiver and their intentions. Strictum 


1v.§§18-20.] ^ STRICTI IURIS, BONAE FIDEI. 475 


jus adheres to a grammatical or literalistic interpretation of a dis- 
position, and assumes that words exactly correspond to intentions. 
It is then called summum jus: e. g. Verbis et literis et summo jure 
contenditur, Cicero. 

(c) The ground to support any given condictio or actio stricti juris 
is precisely defined: whereas an actio ex bona fide, e.g. an actio 
empti or venditi, cannot only be brought on the principal contract 
—emptio venditio—for which it is appropriate but also on any 
accessory conventions (pacta adjecta) and on any attendant circum- 
stances of fraud (dolus) or intimidation (metus). In the later law, 
however, contemporaneous conventions were treated as integral por- 
tions of the contracts of jus strictum: Pacta incontinenti facta 
stipulationi inesse creduntur, Dig. 12, 1, 40. Accordingly interest 
as well as principal could be recovered in an action (incerti con- 
dictio) on a stipulatio to pay a certain sum with an annexed 
convention to pay interest at a certain rate. In the same way 
accessory conventions coalesced into a single contract when annexed 
to a loan: Omnia quae inseri stipulationibus possunt, eadem possunt 
etiam numerationi pecuniae et ideo et conditiones, Dig. 12, 1, 7. 
In the case of a loan of money, however, interest could not be 
recovered on a contemporaneous convention because the only action 
a loan of money could support was condictio certi: on a loan of 
any other quantitas but money, interest could be recovered because 
the action such a contract would support was condictio incerti, 
Cod. 4, 32, 28. Savigny, § 268. 

(d) The Defence in an actio stricti juris could only allege matters 
which ipso jure extinguished or annihilated a claim (e. g. solutio, 
acceptilatio, novatio), or, if they founded a counter-claim of the 
defendant, had been disclosed to the praetor in the preliminary 
pleadings (in jure) in the form of an exceptio: whereas the arbiter 
who tried an actio ex bona fide could consider any counter-obliga- 
tions of the plaintiff even when they were averred for the first 
time in the course of the trial: Exceptio doli bonae fidei judiciis 
inest, Dig. 24, 8, 21. 

(e) In respect of the accessions (omnis causa) in which a defendant 
was condemned, namely fructus and usurae, there was a difference 
between actiones stricti juris and ex bona fide: in the former the 
defendant was only liable to pay these from the date of Litis con- 
testatio ; whereas in the latter he was liable from the date of Mora, 
2 § 280. 





476 DE ACTIONIBUS. [rv. $$ 18-20. 


(f£) As all condemnations under the formulary system were in 
pecuniary damages it was necessary in the event of a condemnation 
that the thing in dispute should be valued in money. In actions 
stricti juris the moment fixed for the valuation (aestimatio) was 
Litis contestatio: in bonae fidei actions the date of valuation was 
the date of Condemnatio: In hac actione sicut in ceteris bonae 
fidei judiciis . . . rei judicandae tempus, quanti res sit, observatur, 
quamvis in strieti juris judiciis litis contestatae tempus spectetur, 
Dig. 18, 6, 83, 2. This is so uncontroverted that in another passage 
which fixes the moment of condemnatio as the moment of aestimatio 
in a stricti juris action, Dig. 18, 8, 8, we may have little scruple in 
assuming that condemnatio is a corrupt reading for contestatio. 
Both in stricti juris and bonae fidei actions if a day was fixed for 
the performance of a contract, this day was the date of aestimatio : 
and if a debtor was guilty of Mora, the creditor had his election 
between Lis contestata and Res judicata respectively and the date 
of Mora. In an action on Delict the date of Valuation was none 
of these but the date of the Delict, i. e. the date of the inception of 
the obligation. Savigny System, $ 275. 

(g) Another difference related to Juramentum in litem, i.e. the 
plaintiffs sworn declaration of the value of the thing in dispute. 
When a defendant contumaciously disobeys a judge’s order in a certain 
class of bona fide actions where judgment is preceded by an order 
(arbitrium) of the judex, namely actiones Arbitrariae, including Real 
actions and Personal actions brought to obtain Restitutio or Exhi- 
bitio; or when by dolus or culpa lata the defendant has disabled 
himself from obeying the judge’s order; then the oath of the 
plaintiff as to the value of the subject of litigation fixes the amount 
of damages (aestimatio) in which the defendant will be condemned. 
Examples of actions brought to recover Restitutio are the actions 
Depositi, Commodati, Locati, Dotis, Tutelae, Doli, Metus, and the 
interdict Unde vi. In bonae fidei actions brought to obtain Traditio, 
e.g. in Emptio Venditio, such juramentum in litem was inadmis- 
sible. In condictions or actions stricti juris it was never admissible ; 
except that when the subject of litigation had ceased to exist by the 
culpa of the defendant, e.g. in the actio legis Aquiliae, and litis 
aestimatio would otherwise be impossible to the judex, he might 
use the plaintiff's oath as a subsidiary evidence for ascertaining 
what was the selling value of the thing that had been destroyed or 
what therein was the plaintiff's exceptional interest. 


rv. $$ 21-25.] MANUS INIECTIO. 477 


(4) If performance of a contract was due at a certain place, a 
bonae fidei action could be brought to recover damages for non-per- 
formance at any other forum as well as at the forum of the specified 
place, whereas a plaintiff who brought an action stricti juris at any 
other forum than the forum of the place where the contract was to 
be executed would have incurred the penalties of Plus petitio: and 
to avoid this was obliged to bring his action in the form of actio 
Arbitraria, 4 6 58, comm. Inst. 4, 6, 88. 

The division of actions into stricti juris and bonae fidei properly 
speaking only embraces Personal actions founded on contract and 
quasi-contract with a formula in jus concepta: that is to say, Real 
actions, Personal actions with a formula in factum concepta, Personal 
actions on delict, praetoria cognitio (cognizance by the praetor with- 
out reference to a judex) were neither stricti juris nor ex bona fide. 
It is probable however that civil delictual actions (the actions furti 
nec-manifesti and legis Áquiliae) were governed by the rules of 
actions stricti juris; while Real actions, and actions in faetum, and 
cognitio praetoria were governed by the rules of actions ex bona 
fide. Vangerow, § 189. Cf. Inst. 4, 6, 28-80. 


MANUS INIECTIO. 





§ 21. Per manus inieetionem ae- 
que (de) his rebus agebatur de qui- 
bus ut ita ageretur, lege aliqua 
eautum est, ueluti iudicati lege 
xir tabularum. quae actio talis 
erat: qui agebat, sic dicebat 
QVOD TY MIHI IVDICATVS (siue 
DAMNATVS) ES SESTERTIVM X MILIA, 
QVANDOC NON SOLVISTI, OB EAM 
REM EGO TIBI SESTERTIVM X 
MILIVM IVDICATI MANVM INICIO, 
et simul aliquam partem corporis 
eius prekendebat. nec licebat iudi- 
cato manum sibi depellere et pro se 
lege agere; sed uindicem dabat qui 
pro se causam agere solebat; qui 
uindicem non dabat, domum duce- 
batur ab actore et uinciebatur. 


§ 22. Postea quaedam leges ex 
alüs quibusdam causis pro iudicato 
manus iniectionem in quosdam de- 


$ 21. Manus injectio (arrest) was 
the form of action prescribed by 
law in certain circumstances ; as, 
for instance, against a judgment 
debtor by the law of the Twelve 
Tables. The procedure was as fol- 
lows: the plaintiff said, * Whereas 
you have been adjudged or con- 
demned to pay me ten thousand 
sesterces which sum you have 
failed to pay, therefore I arrest 
you as judgment debtor for ten 
thousand sesterces,’ and at the same 
time laid hands on him; and the 
debtor was not allowed to resist the 
arrest, or defend himself in his own 
person, but gave a vindex to advo- 
cate his cause, or, in default, was 
taken prisoner to the plaintiff's 
house, and put in chains. 

§ 22. Afterwards Manus injectio 
was given by various laws against 
quasi judgment debtors, as by the 


478 


derunt: sicut lex Publilia in eum 
pro quo sponsor dependisset, si in 
Bex mensibus proximis quam pro eo 
depensum esset, non soluisset spon- 
sorl pecuniam ; item lex Furia de 
sponsu aduersus eum qui & sponsore 
plus quam uirilem partem exegisset ; 
et denique conplures aliae leges in 
multis causis talem actionem dede- 
runt. 

$ 23, Sed aliae leges ex quibus- 
dam causis constituerunt. quasdam 
actiones per manus iniectionem, 
sed puram, id est non pro iudicato: 
ueluti lee. (Furia) testamentaria 
aduersus eum qui legatorum nomine 
mortisue causa plus Àf assibus ce- 
pisset, cum ea lege non esset ex- 
ceptus, ut ei plus capere liceret; 
item lex Marcia aduersus faenera- 
tores, ut 81 usuras exegiesent, de his 
reddendis per manus iniectionem 
cum eis ageretur. 

$ 24. Ex quibus legibus et si 
quae aliae similes essent, cum age- 
batur, (reo licebat) manum sibi 
depellere et pro se lege agere. 
nam et actor in ipsa legis actione 
non adiciebat hoc uerbum PRO 
IVDICATO, sed nominata causa ex qua 
agebat, ita dicebat OB EAM REM EGO 
TIBI MANYM INICIO; cum hi quibus 
pro iudicato actio data erat, no- 
minata causa ex qua agebant, ita 
inferebant OB EAM REM EGO TIBI PRO 
IVDICATO MANVM INICIO. nec me 
praeterit in forma legis Furiae tes- 
tamentariae PRO IVDICATO uerbum 
inseri, cum in ipsa lege non sit; 
quod uidetur nulla ratione factum. 

$ 25. Sed postea lege Vallia, ex- 
cepto iudicato et eo pro quo de- 
pensum est, ceteris omnibus cum 
quibus- per manus iniectionem age- 
batur, permissum est sibi manum 
depellere et pro se agere. itaque 
iudicatus et is pro quo depensum 
est, etiam post hanc legem uindicem 
dare debebant, et nisi darent, 
domum ducebantur. idque quam- 
diu legis actiones in usu erant, 


DE ACTIONIBUS. 


[1v. 8 21-25, 


lex Publilia against the principal 
whose debt had been paid by his 
sponsor, unless he indemnified his 
sponsor within six months from the 
payment of the debt; by the lex 
Furia de Sponsu against the cred- 
itor who had exacted from one of 
several sponsors more than his rat- 
able share; and by various other 
laws against various other persons, 

§ 23. Other laws gave Manus in- 
jectio simple, that is, not to quasi 
judgment creditors, against certain 
other persons: as the lex Furia tes- 
tamentaria against the leyatee or 
donee in contemplation of death 
who received more than a thousand 
asses not being included in certain 
privileged classes; and the lex 
Marcia compelled usurers to refund 
by this process. 


$ 24. These laws and certain 
others permitted the defendant to 
resist arrest and defend himself in 
person, for the plaintiff could not 
arrest him as quasi judgment debtor, 
but, after naming his cause of action, 
said simply, ‘I therefore arrest you ;’ 
whereas, if he proceeded as quasi 
judgment creditor, after naming the 
cause he said, ‘ Therefore I arrest 
you as quasi judgment debtor. I 
am aware that in proceeding under 
the lex Furia testamentaria the 
plaintiff added the words, ‘ As quasi 
judgment debtor,’ though they are 
not inserted in the law; but I be- 
lieve that this could not be justified. 

§ 25. In more recent times the 
lex Vallia permitted all defendants 
sued by manus injectio, except the 
judgment debtor and the principal 
indebted to his sponsor, to resist 
arrest and defend themselves in 
person, Accordingly, the judgment 
debtor in the actio judicati and the 
principal indebted to his sponsor 
had to give a vindex or were taken 
to prison as long as statute-process 


rv. $$ 21-25.] MANUS INIECTIO. 479 


semper ita obseruabatur; unde was in force, and at the present day 
nostris temporibus is cum quo iudi- must give bail for the payment of 
cati depensiue agitur, iudicatum the sum in which they may be con- 
solui satisdare cogitur. demned. 


For the proceedings in Manus injectio see 8 $ 77, comm. 

Manus injectio seems to have had two meanings: 

(1) Self-help, or redress of the plaintiff by his own act, when his 
night was incontestable and the defendant submitted. We certainly 
find manus injectio spoken of by non-juristic writers as an act of 
self-redress : e.g. 

Injiciam dominas in mea jura manus, Ovid, Am. 2, 4. 

Clamarem, Meus est, injiceremque manus, Ovid, Her. 12. 

In this case the award of a magistrate (addictio) would not be a 
necessary preliminary to abduction (secum duci): but self-redress 
was @ remedy only tolerated when society was very loosely consoli- 
dated ; and abductio without preceding addictio must at an early 
period have become illegal. 'The final blow struck by the state at 
Self-redress was the constitution of the three emperors, A.p. 389, 
6 209, comm. 

(2) Manus injectio ceased to be a mere act of self-redress, and 
became the first stage of a statute-process (legis actio) whenever a 
Vindex interposed, or, in manus injectio pura, whenever the alleged 
debtor became defendant in an action, Ihering, 11, c. 

In explaining the nature of Nexum, 8 $$ 88, 89, comm. I have 
assumed with Savigny, that Manus injectio implied a preceding 
Condictio in which the debtor became judicatus. The necessity of 
this preliminary Condictio, however, is not admitted by Huschke: 
and certainly the statutes which introduced Manus injectio pro judi- 
cato and Manus injectio pura seem to have intended that Manus 
injectio should be the procedure in the first instance without any 
antecedent Condictio or Sacramentum. Perhaps Nexum was treated 
as equivalent to in jure confessio (aes confessum) and therefore 
at once grounded a manus injectio. Nexum then would be a 
fiction not of Mutuum but of in jure confessio of Mutuum. 

§§ 22-25. The lex Furia de sponsu (3 § 121), supposed to have 
been passed in s.c. 95, limited the obligation of the sponsor 
and fidepromissor to two years, and divided it equally among all the 
sponsores and fidepromissores without regard to their solvency. 

The word exegisset suggests that the lex Furia de sponsu was 
not a lex perfecta ;—that the limitation of the sponsor's liability to a 


480 DE ACTIONIBUS. [rv. $$ 21-25. 


proportionate part of the principal debt was only effected by a penalty 
being imposed on the creditor who exacted the whole obligation. 

If we assume with Ihering that the lex Furia de sponsu and the 
lex Furia testamentaria (2, 225) were separate clauses of the same 
enactment, we can understand why manus injectio pro judicato, 
which was expressly made the remedy in lex Furia de sponsu, was 
extended by interpretation to lex Furia testamentaria: although 
this extension, according to Gaius, $ 24, violated the rules of 
Statute-process, which ought to rest in its minutest details on the 
express provisions of a statute. 

The lex Marcia is supposed to have been passed between B. c. 200 
and B.c. 100. Its poena, like that of lex Furia testamentaria, 
was quadruplum, Cato de Re Rustica, quoted by Gellius. Penal 
actions maintainable by a common informer, were called Populares ; 
and the informer, from the amount of the penalty, was called 
Quadruplator. 

Some hold that execution and proceedings in bankruptcy in the 
old Roman law were always directed immediately against the person 
of the debtor; execution against his property, under the name of 
Bonorum venditio, 8 $ 77, being a later invention. Savigny, how- 
ever, supposes that execution against the person was confined with 
certain exceptions to judgments on an actual loan of money, and 
that execution on other judgments was always agaiust the estate: 
and this view, as we have seen, throws light on an obscure pro- 
blem, the nature of the ancient contract of Nexum, and renders 
intelligible the Sc. Macedonianum. 

The cases, other than a judgment debt, in which the creditor 
might proceed by Manus injectio seem to be, besides those men- 
tioned in the text, (1) Furtum manifestum, 8 § 189; 

(2) Resistance to in jus vocatio; Si calvitur pedemve struit,manum 
endo jacito, Fragment of the Twelve Tables. ‘If the defendant 
on being summoned to appear before the magistrate tergiversates 
or attempte to flee, the plaintiff may proceed to Manus in- 
jectio.’ 

We may conjecture also that avoidance of in jus vocatio by 
latitation or keeping house rendered a defendant liable to manus 
injectio. Such is the probable explanation of two fragments of the 
Twelve Tables: Siin jus vocat, ni it, antestator, igitur em capito. .. . 
Cui testimonium defuerit, is tertiis diebus ob portum obvagulatum 
ito. ‘Ona service of summons to appear before the magistrate, if 


rv. $$ 21-25.] . MANUS INIECTIO. 481 


the defendant refuse obedience, the plaintiff shall obtain attestation 
of the fact, and then take him by force. In default of such attesta- 
tion (i.e. if the defendant avoid service by keeping out of the way) 
the plaintiff on three market-days shall stand before the defendant's 
door and wawl (loudly summon him to appear (?), and after this 
the defendant shall be liable to manus injectio)? [Compare the 
Hindoo custom of ‘sitting d’harna,’ i.e. fasting at the door of a 
debtor. Maine’s Early History of Institutions. | 

(3) Forfeiture of the condition of the solemn contract called 
Nexum. This was a symbolic contract based on the fiction of a 
money loan (mutuum), and on Condemnation in a Condictio, or, 
possibly, on mere default in performance, the debtor fell into the 
position of a defendant (pro judicato) who has suffered judgment 
on a money loan, 3 §§ 88, 89, comm. 

(4) Damnum injuria under lex Aquilia, $ 171, comm. 

(5) and Legatum per damnationem. See $ 171, comm. 

With liability to Manus injectio for a quasi judgment debt we may 
compare the arrest of an absconding debtor in the English law by a 
writ of capias ad respondendum. As the Roman debtor had to find a 
vindex or responsible representative, so the English debtor must either 
remain in custody or put in bail, that is, find sureties who will under- 
take that, if judgment is obtained against him, either he shall surren- 
der into custody, or shall pay the debt and costs recovered, or that they 
themselves will pay them for him. The Roman Vindex apparently 
became responsible for twice the amount of the original debt. 

$ 25. Bethmann-Hollweg, 2 $ 111, conjectures that actio judicati, 
when the judicium was legitimum ($ 103) was fictitious, and had 
a formula like the following: Quod Numerius Negidius Aulo 
Agerio sestertium decem millia condemnatus est, Si Aulus Agerius 
Numerio Negidio manus injecisset: Tum quicquid Numerium 
Negidium Aulo Agerio dare facere oporteret: Ejus, judex, Nume- 
rium Negidium Aulo Agerio duplum condemna. If the judicium 
was imperio continens, he supposes that the actio judicati was in 
factum with the following formula: Si paret Numerium Negidium 
Aulo Agerio sestertium decem millia condemnatum esse eamque 
pecuniam intra legitimum tempus solutam non esse: Quanti ea 
res erit, tantae pecuniae duplum judex Numerium Negidium Aulo 
Agerio condemna. Under the emperors the actio judicati as a 
means of execution was superseded by Pignoris capio. Thirty 
days were allowed for payment, 3 § 78; then interest began to 

Ii 


482 


DE ACTIONIBUS. 


[1v. 8$ 26-29. 


run at 24 per cent. per annum (duo centesimae per month) which 


Justinian reduced to 12 p. c. 


C. 7, 54, 2. 


PIGNORIS CAPIO, 


$ 26. Per pignoris capionem lege 
agebatur de quibusdam rebus mori- 
bus, (de quibusdam rebus) lege. 

$ 27. Introducta est moribus rei 
militaris. nam et propter stipen- 
dium licebat militi ab eo qui (td) 
distribuebat, nisi daret, pignus ca- 
pere; dicebatur autem ea pecunia 
quae stipendti nomine dabatur, aes 
militare. item propter eam pecu- 
niam licebat pignus capere ex qua 
equus emendus erat; quae pecunia 
dicebatur aes equestre. item propter 
eam pecuniam ex qua hordeum 
equis erat conparandum ; quae 
pecunia dicebatur aes hordiarium. 

$ 28. Lege autem introducta est 
pignoris capio ueluti lege x11 tabu- 
larum aduersus eum qui hostiam 
emisset nec pretium redderet; item 
aduersus eum qui mercedem non 
redderet pro eo iumento quod quis 
ideo locasset, ut inde pecuniam 
acceptam in dapem, id est in sa- 
crifiium, inpenderet. item lege 
censoria data est pignoris capio 
publicanis uectigalium publicorum 
populi Romani aduersus eos qui 
aliqua lege uectigalia deberent. 

$ 29. Ex omnibus autem istis 
causis certis uerbis pignus capieba- 
tur, et ob id plerisque placebat hanc 
quoque actionem legis actionem 
esse; quibusdam autem (contra) 
placebat, primum quod pignoris 
capio extra ius peragebatur, id est 
non apud praetorem, plerumque 
etiam absente aduersario, cum alio- 
quin ceteris actionibus non aliter 
uti possent quam apud praetorem 
praesente aduersario, praeterea quod 
nefasto quoque die, id est quo non 
licebat lege agere, pignus capi 
poterat. 


$ 26. Pignoris capio (distress) 
was introduced in some cases by 
custom, in others by law. 

$ 27. By custom, in obligations 
connected with military service; 
for the soldier could distrain upon 
his paymaster for his pay, called 
aes militare; for money to buy & 
horse, called aes equestre; and for 
money to buy barley for his horse, 
called aes hordiarium. 


$ 28, The law of the Twelve 


Tables rendered liable to distress 


on default of payment the buyer of 
& victim and the hirer of a beast of 
burden lent to raise money for a 
sacrifice. The lex Censoria gave 
the power of distress to the farmers 
of the public revenue. 


$ 29. As in all these cases the 
distreinor used a set form of words, 
ihe proceeding was generally con- 
sidered a form of statute process, 
Some, however, held otherwise, 
because it was performed in the 
abrence of the praetor and generally 
of the debtor; whereas, the other 
forms of statute process could only 
be enacted in the presence of the 
praetor and the adversary; besides, 
it could take place in the juridical 
vacation (2 $ 279), that is, in days 
unavailable for statute process. 


rv. §§ 26-29.] PIGNORIS CAPIO. 483 


Distress in English law bears a certain resemblance to Execution. 
Each is the application of constraint to a defendant's will by seizure 
of his goods. But making a distress is the act of a private person, 
and precedes the commencement of an action: execution follows 
after judgment obtained in an action, and is the act of the executive 
at the command of the sovereign. "The pignoris capio of the older 
Roman law corresponded to distress; the pignoris captio of the 
formulary system generally was a mode of execution. 

Perhaps pignoris capio, like manus injectio, was originally an act 
of Self-redress, and did not amount to legis actio unless it led to a 
suit in which the distreinor was plaintiff. 

Pignoris capio in the older system was a remedy allowed in cases 
of a public character, that is, in claims relating to military service, 
to religion, or to the revenue. In the first case the remedy was 
established by custom, that is, was anterior to the Twelve Tables ; in 
the second case it was given by the Twelve Tables; in the third 
case it was created by law subsequent to the Twelve Tables. 

We have mention of the aes hordearium, $ 27, in Livy's account 
of the Servian constitution, Livy 1. 48. * Each soldier received 
ten thousand asses for the purchase of & horse, and for its main- 
tenance a widow was assigned, who was bound to pay two thousand 
asses a year.’ 

The institution appears to have been transplanted from Greece. 
Cicero mentions it as in force at Corinth, De Republica, 2, 20. 
*'Tarquinius Priscus instituted the present organization of the 
cavalry. At Corinth, whence be came, there was a practice of 
allotting horses at the public expense and taxing the childless 
and widows for their maintenance. The private persons thus 
appointed military paymasters appear to have been called tribuni 
aerarü, Gellius 7, 10. In later times soldiers were paid by the 
Quaestors from the public treasury. 

We have something similar in the Laws of Plato: wepi 98 .... 
Aetrovpytáv, ómóca wept Ovolas elpqvwijs 7) wokepsxGy eladopáv elvexa, 
qávrev Tür ToovTey Thy TpaTny avayxny larnv evar ris Cyulas rois 
[de] py weOopdvors, evexupactay rovrors ols àv móAis dpa xal vdpos 
elexpárrew spoordrry, Tav d& dreWovvTwy rais évexupacias mpacw 
tay evextpwr etvat, 7d de vduiopa ylyverOa rj wéAe, Laws, 12, 4. 
‘If a public duty rélating to religion or war is unperformed, the 
first stage of coercive penalty shall be defeasible by submission 
of the defaulter, and his goods shall be merely taken in distress 

I12 


DE ACTIONIBUS. [rv. $$ 30-38. 


484 


by the lawfully appointed official; but if he continue contumacious, 
the distress shall be sold and the proceeds shall be confiscated.’ 

§ 28. Raising money for a sacrifice by letting out a beast of 
burden seems such an exceptional circumstance that we may con- 
jecture it was only a fictitious averment permitted for the purpose 
of grounding an action. Compare the fictitious averment, permitted 
for the purpose of grounding the jurisdiction of the court of Ex- 
chequer that the plaintiff was the king’s debtor and, by reason of 
the defendant’s default, was unable to pay his debt to the king. 

A praediator is defined by Gaius, qui mercatur a populo, above, 
2 $61. A lex praediatoria is mentioned by Suetonius: Ad eas 
rei familiaris angustias decidit, ut cum obligatam aerariis fidem 
liberare non posset, in vacuum lege praediatoria venalis pependerit 
sub edicto praefectorum, Claudius 9. ‘He was so impoverished, 
that he could not discharge his obligation to the treasury, and 
the prefects advertised his goods for sale without reserved price, 
as provided by lex praediatoria) On the first day of a sale the 
amount of the debt due to the state was announced as a reserved 
price, or minimum for which the goods would be sold. If no 
bidder appeared on these terms, the goods were offered on & sub- 
sequent day without reserve (in vacuum). Kuntze. 


DE FICTIONIBUR. 





$ 30. Sed istae omnes legis ac- 
tiones paulatim in odium uenerunt. 
namque ex nimia subtilitate uete- 
rum qui tunc iura condiderunt, eo 
res perducta est, ut uel qui mini- 
mum errasset, Jitem perderet. ita- 
que per legem Aebutiam et duas 
Iulias sublatae sunt istae legis ac- 
tiones effectumque est, ut per con- 
cepta uerba, id est per formulas 
litigemus. 

6 31. Tantum ex duabus causis 
permissum est lege agere: damni 
infecti et si centumuirale iudicium 
futurum est. sane quidem cum ad 
centumuiros itwr, ante lege agitur 
sacramento apud praetorem urba- 
num uel peregrinum [praetorem]. 
damni uero infecti nemo uult lege 
agere, sed potius stipulatione quae 
in edicto proposita est, obligat ad- 
uersarium suum, idque et commo- 


$ 30. But all these branches of 
statute process fell gradually into 
great discredit because the excessive 
literalism of the ancient jurists made 
the slightest error fatal; and they 
were abolished by the lex Aebutia 
and the two leges Juliae, which in- 
troduced in their stead the system 
of formulas or variable written in- 
structions of the praetor to the 
judex. 

§ 31. Two cases only were re- 
served for statute process, appre- 
hended damage and centumviral 
causes. The latter are still preceded 
by statute process of sacramentum 
before the praetor urbanus or pere- 
grinus, as may happen. For pro- 
tection against apprehended damage 
a plaintiff no longer resorts to statute 
process, but stipulates to be indem- 
nified by the defendant in the man- 


rv. $$ 30-38. ] 


dius ius et plenius est. per pignoris 
capionem ——| 

(23 uersus in C legi nequeunt) 
— ——aápparet. 

$ 32. Item in es forma quae 
publicano proponitur, talis fictio 
est, ut quanta pecunias olim, si 
pignus captum esset, id pignus is a 
quo captum erat, luere deberet, tan- 
tam pecuniam condemnetur. 

$33. Nulla autem formula ad 
condictionis fictionem exprimitur. 
siue enim pecuniam siue rem ali- 
quam certam dejitam nobis peta- 
mus, eam ipsam DARI NOBIS OPOR- 
TERE intendimus; nec ullam adiun- 
gimus condictionis fictionem. itaque 
simul intellegimus eas formulas qui- 
bus pecuniam aut rem aliquam nobis 
dari oportere intendimus, sua ui ac 
potestate unlere. eiusdem naturae 
sunt actiones commodati, fiduciae, 
negotiorum gestorum et aliae in- 
numerabiles. 

§ 34. Habemus adhuc alterius 
generis fictiones tn quibusdam for- 
mulis, ueluti cum is qui ex edicto 
bonorum possessionem petzit, ficto 
se herede agit. cum enim praetorio 
iure, non legitimo succedat in locum 
defuncti, non habet directas actiones, 
et neque id quod defuncti fuit, po- 
test intendere 8VVM ESSE, neque td 
quod ei debebatur, potest intendere 
(DARI) 81BI OPORTERE ; itaque ficto 
se herede intendit uelut hoc modo 
IVDEX ESTO. 8I 4. | AGERIVS (id 
est si ipse actor) L. TITIO HERES 
ESSET, TVM (SI EVM) FYNDVM | DE 
QVO AGITVR EX IVRE QYIRITIVM 
BIVS E88E OPORTERET; et si— de 
——, | praeposita simili fictione 
heredis ita subicitur TVM 81 PARE|RET 
N. NEGIDIVM (4.) AGERIO SESTER- 
TIVM X MILIA DARE OPORTERE. 


DE FICTIONIBUS. 


485 


ner provided by the edict, whereby 
he is put to less trouble and obtains 
ampler redress. 


$ 32. The formula provided for 
the farmer of the revenue directs 
ihe debtor to be condemned in the 
sum for which formerly, after seizure 
of his goods, he would have had to 
ransom the distress. 

$ 33. No formula is moulded on 
a hypothetical condictio; for when 
we sue for & certain thing or sum 
of money, our intentio names the 
very thing or sum for which we sue, 
without any reference to an imagined 
condictio: so that the modern con- 
dictio is not based on the ancient 
Statute process. Similarly indepen- 
dent of the elder system are the 
actions of Loan for use, Trust, Un- 
authorized Agency, and innumer- 
able others. 


§ 34. The other kind of fiction is 
employed when the bonorum pos- 
Sessor or praetorian successor is 
feigned to be civil heir. Being only 
the praetorian, not the legal, suc- 
cessor, he has no direct action, and 
can neither claim to be [Quiritary] 
proprietor of the things belonging 
to the deceased, nor to be [by civil 
law] obligee of the debts due to 
him. Accordingly, the intentio 
supposes him to be civil heir, and 
runs as follows: *Let C D be judex. 
Supposing Aulus Agerius (plaintiff) 
were the civil heir of Lucius Titius, 
if in that supposition it be proved 
that the land in question ought to 
be his by the law of the Quirites ;’ 
or, in case of a debt, after a similar 
hypothesis of civil succession, the 
intentio proceeds: 'if in that sup- 
position it be proved that Nume- 
rius Negidius (defendant) ought [by 
civil law| to pay to Aulus Agerius 
ten thousand sesterces; then let the 
defendant be condemned, &c. : 








486 


$ 35. Similiter et bonorum emp- 
tor ficto se herede agit; sed inter- 
dum et alio modo agere solet. nam 
ex persona eius cuius bona emerit, 
sumpta intentione conuertit con- 
demnationem in suam personam, id 
est ut quod illius esset uel illi dart 
oporteret, eo nomine aduersarius 
huic condemnetur; quae species 
actionis appellatur Rutiliana, quia 
& praetore P. Rutilio, qui et bono- 
rum uenditionem introduxisse dici- 
tur, conparata est. superior autem 
species actionis qua ficto se herede 
bonorum emptor agit, Seruiana 
(wocatur. 


$ 36. Item wsucapio fingitur in 
ea actione quae Publictana) uoca- 
tur. datur autem haec actio ei qui 
ex iusta causa traditam sibi rem 
nondum usucepit eamque amissa 
possessione petit. nam quia non 
potest eam EX IVRE QVIRITIVM SVAM 
ESSE intendere, fingitur rem usuce- 
pisse et ita quast ex iure Quiritium 
dominus factus esset intendit, ueluti 
hoc modo IVDEX ESTO. 8I QVEM 
HOMINEM A. AGERIVS EMIT (ET) 
IS EI TRADITVS EST, ANNO POSSE- 
DISSET, TVM SI EVM HOMINEM DE 
QVO AGITVR EX IVRE QVIRITIVM 
EIVS ESSE OPORTERET et reliqua. 


$ 37. Item ciuitas Romana pere- 
grino fingitur, si eo nomine agat 
aut cum eo agatur, quo nomine 
nostris legibus actio constituta est, 
si modo iustum sit eam actionem 
etiam ad peregrinum extendi: ue- 
luti si furti agat peregrinus aut 
cum eo (agatur. nam si cum pere- 
grino) agatur, formula ita concipi- 
tur IVDEX ESTO. SI PARET (4 
DIONE HERMAEI FILIO FVRTVM 
FACTVM ESSE L. TITIO, aut SI PA- 
RET OPE) CONSILIOVE DIONIS HER- 
MAKI FILIJ FVRTVM FACTVM ESSE 


DE ACTIONIBUS, 


[1v. $$ 30-38. 


$35. So the purchaser of a 
bankrupt’s estate may either sup- 
pose himself to be civil heir, or may 
use a different form [feigning to be 
procurator of the insolvent]: he may 
name the insolvent in the intentio 
and himself in the condemnatio, 
requiring the defendant to restore 
or pay to himself any property that 
belonged or any debt that was due 
to the insolvent. This form of ac- 
tion is called Rutilian from the 
praetor Rutilius who invented exe- 
cution in bankruptcy against the 
estate: the action wherein the 
plaintiff feigns himself civil heir is 
called Serviana. 

§ 36. So there is a fiction of usu- 
capion in the Publician action, 
whereby a man claims a thing which 
had been delivered to him for a just 
consideration and of which he lost 
possession before he had acquired 
property by usucapion. Being un- 
able to call it his property by the 
law of the Quirites, he is supposed 
to have acquired it by usucapion 
and his intentio rans as follows: 
‘Let C D be judex. Supposing 
that the slave who was sold and 
delivered to Aulus Agerius had 
continued during a year in his pos- 
session, if in that case the slave 
ought to have belonged to Aulus 
Agerius by the law of the Quirites, 
then condemn the defendant,’ &c. 

§ 37. So an alien is feigned to be 
& Roman, if he sue or be sued in an 
action which may justly be extended 
to aliens, For instance, if an alien 
sues or is sued for theft, in the 
latter case the formula runs as fol- 
lows: ‘Let CD be judex. If it be 
proved that Dio son of Hermaeus 
stole—or, if it be proved that Dio 
son of Hermaeus aided and abetted 
in stealing—from Lucius Titius a 
golden cup, for which, if he had 
been a Roman citizen he would 
have had to make composition for 





Iv. $$ 30-38.] 


PATERAE AVREAE, QVAM OB REM 
EVM, 8I CIVIS ROMANVS ESSET, PRO 
FVRE DAMNVM DECIDERE OPORTERET 
et reliqua. item si peregrinus furti 
agat, ciuitas ei Romana fingitur. 
similiter si ex lege Aquilia peregri- 
nus damni iniuriae agat aut cum 
eo agatwr, ficta ciuitate Romana 
iudicium datur. 

$ 38. Praeterea aliquando fingi- 
mus adwersarium nostrum capite 
deminutum non esee. nam si ex 
contractu nobis obligatus obligataue 
sit et capite deminutus deminutaue 
fuerit, uelut mulier per coemptio- 
nem, masculus per adrogationem, 
desinit iure ciuili debere nobis, nec 
directo intendi potest sibi dare eum 
eamue oportere; sed ne in potes- 
tate eius sit ius nostrum corrum- 
pere, introducta est contra eum 
eamue actio utilis rescissa capitis 
deminutione, id est in qua fingitur 
eapite deminutus deminutaue non 
esse. 


DE FICTIONIBUS. 487 


theft, then condemn Dio son of 
Hermaeus, &c. So if an alien 
sue for theft or sue or be sued 
under the Aquilian law for damage 
to property, he is feigned to be a 
Roman citizen, 


§ 38. Again, we may feign that 
the defendant has not been degraded 
in status: for if we make a contract 
with a person who afterwards is 
degraded in status, as an (indepen- 
dent) female by subjection to hand, 
an independent male by adrogation, 
he or she ceases by the civil law to 
be our debtor, and we cannot directly 
declare in the intentio that he or she 
is bound to convey. To protect our 
rights, however, from extinction by 
the act of another, the praetor grants 
a fictitious action, rescinding or ig- 
noring the defendant’s act and sup- 
posing the continuance of his or 
her original status. 


§ 80. The lex Aebutia is supposed to have been passed about 
170 s.c. The leges Juliae are supposed to be a lex judiciaria 





passed by Julius Caesar about 45 B.c., and another lex judiciaria 
passed by Augustus about 25 B.c. After the legis actiones were 
abolished as modes of proceeding in civil suits their forms still 
survived in the ceremonies of Adoption, the manumission of a slave, 
the emancipation of a son, and conveyance by in jure cessio. 

It may be questioned whether Gaius has exactly laid his finger 
on the deficiency of the system of Statute-process when he alleges 
ite excessive formalism (nimia subtilitas) as the cause of its failure. 
Its shortcoming was not so much ite formalism (the following 
system was equally formalistic) as (1) its want of safeguards against 
errors of form and (2) its want of power of expansion. 

(1) Though the Formula was perhaps as literally and rigorously 
interpreted as the form of Statute-process, yet the period at which 
the Formula was fixed in the Formulary system diminished the 
danger of the defeat of a rightful claim by an error in the selection 
of the appropriate form. The formula of an action was not de- 








488 DE ACTIONIBUS. [rv. §§ 30-38. 


termined till the close of a debate before the magistrate (in Jure) 
in which both parties were assisted by jurists and had disclosed, in 
part at least, their pretensions, and brought the true issue to light. 
Statute-process was formal at an earlier stage and from the inception 
of the proceedings: and the kinds of statute-process were specially 
characterized and denominated by their first stages even when these 
were extra-jural or outside the court, as im manus injectio and 
pignoris capio. In Statute-process an error of form at any of the 
stages preceding litis contestatio was fatal to the party by whom it 
was committed. In the Formulary system no litigant could commit 
& suicidal error—no form was fixed whereby his claim could be 
defeated—before the litis contestatio. 

(2) A plaintiff had no remedy unless he could show that his case 
had been contemplated by the legislator: but the legislator had 
been too much occupied with foreign war and domestic dissension 
to think of developing the private code. Jurisprudence had been 
busy in framing such actions as the system admitted ; but jurispru- 
dence had little voice and little scope. If the law was silent, if 
there was any hiatus or casus omissus, jurisprudence was not 
allowed to fill up the void. The praetor himself had his hands tied 
and was a mere piece of machinery. The institution of the For- 
mulary process gave an organ to the voice of Jurisprudence, and the 
power of issuing edicts and inventing new forms of action consti- 
tuted the praetor a second legislator. The enlarged scope given to 
the conscience of jurisprudence by the new powers of the praetor 
produced an enlargement of the scheme of remedies such as followed 
in England from the recognition of the royal conscience as a source 
of civil legislation and the erection, beside and in addition to the 
common law courts, of à court of Chancery presided over by the 
guardian of the conscience of the king. Ihering, § 47. 

Conceptae feriae denoted holidays specially appointed by the 
magistrate, as opposed to feriae stativae: so concepta verba seems 
to denote the formulas accommodated by the magistrate to the 
various grounds of litigation, as opposed to the certa verba, § 29, 
or more immutable formulas prescribed to the litigants in Statute- 
process by the legislator. The term, then, expresses elasticity. 

We may observe by anticipation that the formulary system, 
after an existence of nearly five hundred years, was brought by 
the ingenuity of lawyers into the same discredit and experienced 
the same fate as the system it had displaced. First Diocletian, 








1v. § 30-38.] DE FICTIONIBUS. 489 


A.D. 294, made all judicia extraordinaria, that is, required the 
magistrates to hear and determine all causes themselves, instead 
of commissioning others to hear and determine them, Cod. 8, 3. 
* Governors of provinces shall themselves determine the causes 
which they used to refer to inferior (pedaneos) judges, unless com- 
pelled by pressure of business or the number of causes to delegate 
their function.” [Pedaneus judex is the ordinary judex of the For- 
mulary system, as distinguished from the praetor or highest judicial 
authority. In the latest period the praetor or magistrate judged in 
person and was denominated judex, but under certain circumstances 
he could appoint a judge called judex pedaneus as his substitute. | 
Afterwards Constans, A.D. 842, abolished the necessity of using con- 
secrated terms in any legal act. Juris formulae, aucupatione sylla- 
barum insidiantes, cunctorum actibus radicitus amputentur, Cod. 
2, 58. ‘ Legal formulas with their syllabic snares and pitfalls, are 
hereby abolished in every procedure.’ 

$31. The proceeding under the edict in Damni infecti was as 
follows: If A apprehended damage to his property from the 
downfall of a dilapidated house (aedes vitiosae, ruinosae) belonging 
to B, he might apply to the praetor and obtain an order that B 
should promise, with or without sureties according to circum- 
stances, to indemnify A in the event of the accident. If B 
refused to promise, the praetor by a first decree put A in pos- 
session, that is, gave him detention or custody of B’s house. If 
B still refused, the praetor by a second decree gave the property 
to A, if B was quiritarian proprietor: if B had not the quiritarian 
property, the praetor gave A the bonitarian property, that is, a 
usucapion possession which time would convert into quiritarian 
proprietorship. This remedy, imposing the necessity of indemni- 
fying or surrendering the cause of damage, was an imitation of 
noxal actions, which. compelled the father of a son or owner of 
a slave or of a beast that had injured a neighbour's property 
either to make compensation or to surrender the author of the 
damage. 

The proceeding damni infecti nomine by statute-process, from its 
similarity to the proceeding in aquae pluviae arcendae, may be in- 
ferred to have been a form of judicis postulatio. 

$ 82. In English law there is a similar reference to an obsolete 
institution in the case of debtors to the sovereign. By 33 Hen. 8, 
c. 89, and 13 Eliz. c. 4, persons indebted to the Crown are to incur 


490 DE ACTIONIBUS. [rv. $$ 30-38. 


in certain cases the same liability as if they were bound in a Statute 
Staple, a form of solemn contract now disused. 

§ 34. Gaius appears to have divided Fictions into two classes, 
those which made a reference from the formulary system to the older 
system of procedure, and those which made a reference from rights 
protected by the praetor to rights recognized by the civil law. 
The former class were not an extension of the law, but only pre- 
served to a plaintiff the remedies which he otherwise would have 
lost by the change of procedure when statute-process was abolished. 
For instance, the fiction of Pignoris capio was employed to 
preserve unimpaired the rights of the revenue contractor and as 
a measure for assessing the damages to which he was entitled 
against a defaulter. 

The second class of fictions was an extension or reform of the 
law, protecting persons whose rights had previously not been 
recognized, or mitigating the rigours and liberalizing the narrow- 
mindedness of the ancient barbarous legislation: granting to the 
bonitarian proprietor by inheritance or purchase the protection 
enjoyed by the quiritarian proprietor; giving to the alien the 
redress provided for the citizen, and preserving to the creditor 
the remedies extinguished by the debtor’s diminution of status. 
In their task of ameliorating the law the praetors proceeded as un- 
obtrusively as possible, by tacit rather than by open legislation, and 
rather by innovations in the adjective code, to use Bentham’s 
expression, or code of procedure, than in the substantive code. 
The introduction of the formulary system, giving them authority 
to ereate new actions, had virtually invested them with much 
legislative power. 'The new actions introduced by the praetor were 
called actiones utiles. Utiles actiones were either fictitiae or in 
factum, 8 $ 219, comm. Let us examine actiones fictitiae and in 
factum in respect of the mode of their operation. The logic of 
justice as administered in the courts may be regarded as a syllo- 
gism, of which the major premiss is the substantive law annexing 
a certain remedy to certain conditions (to a certain title) ; the minor 
premiss the proposition that between the present plaintiff and defen- 
dant these conditions are satisfied ; and the conclusion, the enforce- 
ment of the remedy in favour of the plaintiff by the executive. Let 
A represent the remedy or sanctioning right, B the conditions or 
title, C the plaintiff or his facts. (If C represente the defendant, 
A will represent the sanctioning duties or obligations.) The praetor 





rv. $$ 30-38.] DE FICTIONIBUS. 491 


proceeded in two ways, (1) Without or (2) with the use of 
fiction. 

(1) Without expressly asserting the major premiss, B is A, or avow- 
edly introducing a new principle of substantive law, it is clear that 
he introduced it by implication if he made the conclusion, C is A, 
follow from the minor premiss, Cis B. He did so in granting an actio 
in factum, one of his most potent instruments, that is, an actio whose 
intentio in faetum concepta, of the form, Si paret . . . fecisse, proposed 
a single issue of fact; for thus he tacitly introduced a new major 
premiss, B is A, or converted a rule of equity or public opinion into 
@ principle of substantive law, without any fiction or reference to 
previous rules. — Utilis actio in factum, D. 11, 7, 7 $ 1, was an 
action that really had an affinity or analogy to some actio directa, 
but did not in its formula accentuate this affinity by means of any 
Fictio, e. g. actio Depositi, $ 47. 

(2) When he granted a fictitious action, that is, one whose 
intentio in jus concepta, of the form, Si paret . . . . oportere, 
admitted issues both of fact and of law, the fiction furnished an 
exact measure of the extent to which the old law had been 
abandoned. If the old law is represented by the major premiss, 
B is A, the praetor might suppress some element, X, of the title 
B to which the remedy À was annexed; and make the conclusion, 
C is A, follow from the minor premiss, C is B minus X. ,The 
fiction would be the false assumption that C (the plaintiff's case) 
satisfied the abrogated condition X whenever it was proved to 
satisfy the remaining elements of B. By ruling that the fictitious 
proposition, C is X, should not be called in question, and that the 
defendant should not be allowed to demur to the plaintiff's claim 
on the ground that X was unsatisfied, the praetor would virtually 
abrogate the old law, B is A, and substitute for it the new law, B 
minus X is A. In the cases given by Gaius the condition repre- 
sented by X relates to succession, usucapio, citizenship, status. It 
might relate to delivery, contract, alienation, or any other dispo- 
sition. In the actio Pauliana, protecting creditors against 
fraudulent alienations, the fiction was an assumption of non-delivery 
(rescissa traditione). Restitutio in integrum of a minor or person 
who had acted under constraint of fear might assume the form of a 
fictitious action which treated the rescinded act as unperformed 
(rescissa alienatione). 

A utilis actio, e.g. the formula Rutiliana, § 35, sometimes 











492 DE ACTIONIBUS. [rv. $$ 30-38. 


depended on a variance in the parts of a formula, the true plaintiff 
or defendant first appearing in the condemnatio after another 
person had been named in the intentio. 'The formula is thus 
shaped when one of the parties to an action is a procurator, 
4 §§ 86, 87; but in the utilis actio the relation of principal and 
procurator is merely fictitious. 

Of the above forms of actio utilis the actio fictitia was probably 
the first to be established, and the actio in factum concepta the 
most recent. 

§ 85. The purchaser of a bankrupt’s estate, unlike the purchaser 
at a sectio bonorum, or sale sub hasta of the confiscated goods of a 
criminal, though a universal successor, only took, in the language 
of English law, the equitable and not the legal estate. To protect 
his rights the praetor allowed him to sue by actio fictitia either ' 
in the character of heres, or successor to the legal estate, or by a 
variance of the parts of the formula (convertit condemnationem in 
suam personam), in the character of procurator. 

The praetor Publius Rutilius may either have been a person who 
was praetor in 167 B.c., or a person who was consul in 104 s.c. 
The formula which he introduced was used by the cognitor and 
procurator, 4 § 86. Before his time, apparently, the lawyers enter- 
tained a superstition about a variance between the intentio and 
condemnatio. 

The actio Serviana here mentioned was apparently not the same 
as the actio Serviana whereby a leseor could recover the goods of 
a colonus which had been pledged as a security for the payment of 
rent. 

§ 86. A Quintus Publicius is mentioned by Cicero, Pro Cluentio, 
45, as praetor in B.c. 66 or shortly before. The actie Publiciana, 
2 $41, was used by a grantee from a grantor who was not pro- 
prietor. But the action would also be convenient to an actual 
proprietor who wished to be relieved of the necessity of proving his 
title. The plaintiff had to prove that he acquired possession in 
consequence of some disposition (titulus, causa) such as emptio. 
His acquisition had to be accompanied like Usueapio by bona fides, 
i. e. à belief that the alienor had a power to aliene; but as the proof 
of bona fides is impossible, whereas the proof of mala fides is often 
easy, bona fides was presumed; i.e. the burden of the proof of 
mala fides was thrown on the defendant. If the plaintiff proved 
his intentio the defendant would stil prevail if he could show a 


1v.§§39-44.] DE PARTIBUS FORMULARUM. 493 


better title as by a similar acquisition a diverso auctore, or & prior 
acquisition ab eodem auctore. In these cases Publiciana wore the 
air of a duplex judicium. Savigny, Obligationsrecht, § 67. For 
an account of the actio Publiciana, when maintained by (1) a 
bonitary proprietor, (2) a bona fide possessor, see 2 §§ 40-61, comm. 

The form of the actio Publiciana that we have considered pro- 
ceeds on the supposition of the accomplishment of a non-accom- 
plished usucapio. Some writers, misled by Dig. 44, 35, 7, pr., 
have imagined the existence of another form of Publiciana, which 
they call contraria Publiciana or Publiciana rescissoria, proceeding 
on the supposition that an accomplished usucapio had not been ac- 
complished. But Savigny has shown, § 329, that this is erroneous : 
that when usucapion is rescinded in Integral Restitution on account 
of Absence, the action whereby the plaintiff recovers his property 
may be, according to circumstances, either an ordinary Publiciana 
or an ordinary Vindicatio, Inst. 4, 6, 5: that the rescission of 
usucapio, in other words, does not give birth, as supposed, to any 
new form of action. 

§ 38. By a positive rule, of which we are unable to give the ra- 
tionale [1 $ 162, comm.], the change of status produced by eoemptio 
and adrogatio extinguished the debts of the wife or adrogatus, and 
the husband or adrogator acquired by manus and patria potestas 
their rights without their liabilities. To meet this the praetor gave 
the creditor an actio rescissoria: Ait praetor: qui quaeve, posteaquam 
quid cum his actum contractumve sit, capite deminuti deminutaeve 
esse dicentur, in eos easve quasi id factum non sit judicium dabo, 
Dig. 4, 5,2. If the action was not defended by the husband or 
adrogator, the praetor gave the creditor missio in possessionem and 
power of sale against all the property of the wife or adrogatus, 
8 § 84. 


DE PARTIBUS FORMULARUM. 


§ 39. Partes autem formularum 
hae sunt: demonstratio, intentio, 
adiudicatio, condemnatio. 

§ 40. Demonstratio | est ea pars 
formulae quae —, ut demonjstretur 
res de qua agitur: uelut haec pars 
formulae QYOD A. AGERIVS N. NEGI- 
DIO HOMINEM VENDIDIT ; item haec 
QVOD A. AGERIVS (APVD) N. NEGI- 
DIVM HOMINEM DEPOSVIT. 


$39. The formula is composed of 
the Demonstratio, the Intentio, the 
Adjudicatio, the Condemnatio. 

§ 40. The principal function of 
the Demonstratio is to indicate the 
subject of dispute, [the cause of 
action, the title of the plaintiff's 
right, the origin of his claim] as in 
the following example: ‘ Whereas 
Aulus Agerius sold a slave to 





494 DE ACTIONIBUS. 


§ 41. Intentio est ea pars formu- 
lae qua actor desiderium suum con- 
cludit : uelut haec pars formulae s1 
PARET N. NEGIDIVM A. AGERIO 8E8- 
TERTIVM X MILIA DARE OPORTEBE ; 
item haec QVIDQVID PARET N. NEGI- 
DIVM A. AGERIO DARE FACERE 
(OPORTERE) ; item haec 8I PARET 
HOMINEM EX IVRE QVIBITIVM A. 
AGERII ESSE. 


$ 42. Adiudicatio est ea pars 
formulae qua permittitur iudici rem 
alicui ex litigatoribus adiudicare: 
uelut si inter coheredes familiae 
erciscundae agatur, aut inter sociog 
communi diuidundo, aut inter uici- 
nos finium regundorum. nam illic 
ita est QVANTVM ADIVDICARI OPOR- 
TET, IVDEX TITIO ADIVDICATO, 


$ 43. Condemnatio est ea pars 
formulae qua iudici condemnandi 
absoluendiue potestas permittitur : 
uelut haec pars formulae 1IVDEX N. 
NEGIDIVM A. AGERIO SESTERTIVM X. 
MILIA CONDEMNA. 8I NON PABET, 
ABSOLVE; item haec IVDEX N. NEGI- 
DIVM A. AGERIO DVMTAXAT (X 
MILIA) CONDEMNA. 8I NON PARET, 
ABSOLVITO; item haec IVDEX N. 
NEGIDIVM A. AGERIO CONDEMNATO 
et reliqua, ut non adiciatur DYM- 
TAXAT (X MILIA). 


$44. Non tamen istae omnes 
partes simul inueniuntur, sed quae- 
dam inueniuntur, quaedam non in- 
ueniuntur. certe intentio aliquando 
sola inuenitur, sicut in praeiudici- 


[1v. $$ 39-44. 


Numerius Negidius, or, ‘ Whereas 
Aulus Agerius deposited a slave in 
the hands of Numerius Negidius..’ 

§ 41. The Intentio expresses the 
claim of the plaintiff, thus: ‘If it 
be proved that Numerius Negidius 
ought to convey ten thousand ses- 
terces to Aulus Agerius;’ or thus: 
* Whatever it be proved that Nume- 
rius Negidius ought to convey or 
render to Aulus Agerius;’ or thus; 
‘If it be proved that the slave in 
question belongs to Aulus Agerius 
by the law of the Quirites.’ 

§ 42. The Adjudicatio empowers 
the judex to transfer the proprietor- 
ship of a thing to one of the liti- 
gants, and occurs in the actions for 
partitioning an inheritance between 
co-successors, for dividing common 
property between  co-proprietors, 
and for tracing boundaries between 
neighbouring landholders. In these 
the praetor says: ‘ The portion of 
the estate that ought to be trans- 
ferred to Titius, do thou, judex, by 
thy award transfer to him,’ 

$ 43. The Condemnatio em- 
powers the judex to condemn or 
absolve the defendant, thus: * Do 
thou, judex, condemn Numerius 
Negidius to pay to Aulus Agerius 
ten thousand sesterces; if it be 
not proved, pronounce his abso- 
lution;' or thus: * Do thou, judex, 
condemn Numerius Negidius to 
pay to Aulus Agerius a sum not 
exceeding ten thousand sesterces ; 
if it be not proved, pronounce 
his absolution;' or thus: ‘Such 
a sum do thou, judex, condemn 
Numerius Negidius to pay to 
Aulus Agerius, et cetera, without 
naming the sum or fixing a maxi- 
mum of ten thousand sesterces. 

$ 44. These parts are not con- 
current, but where some are present 
others are absent. Sometimes the 
Intentio is found alone, as in the 
prejudicial formula to decide whe- 


1v. $$ 39-44.] 


alibus formulis, qualis est qua quae- 
ritur, aliquis libertus sit, uel quanta 
dos eit, et aliae conplures. demon- 
stratio autem et adiudicatio et con- 
demnatio numquam solae inueniun- 
tur, nihil enim omnino (demon- 
strato) sine intentione uel con- 
demnatione ualet ; item condemnatio 
sine demonstratione uel intentione, 
uel adiudica( tio sine demonstratione 
uel inten)tione nullus uires habet, 


DE PARTIBUS FORMULARUM. 


495 


ther a man is a freedman, or to 
ascertain the amount of a dower, 
or to settle other preliminary in- 
quiries. But the Demonstratio, 
Adjudicatio, and Condemnatio are 
never found alone, for the Demon- 
stratio is inoperative without an 
Intentio and Condemnatio, and the 
Condemnatio and Adjudicatio are 
inoperative without a Demonstratio 
or an Intentio. 


(et) ob id numquam solae inueniun- 
tur. 

$ 89. Besides the four parts mentioned by Gaius the formula 
always contained a nomination of a judex, and sometimes an ex- 
ceptio, praescriptio, or arbitrium, accessory parts which will be 
presently explained. 

§ 40. The demonstratio seems not to have occurred in real 
actions nor in personal actions in factum, but in personal actions 
in jus, whether founded on contract or on tort, excepting perhaps 
the condictio certi. It was introduced in order to form a basis for 
aestimatio, whenever an intentio incerta left the quantum of the 
condemnatio to be determined by the judex. In Publiciana, $ 36, 
and Condictio certi, § 55, the causa is introduced, not in Demon- 
stratio, but as a part of the Intentio. 

If the contract had a technical name (e.g. depositum, venditio) 
ihe demonstratio contained the name (deposuit, vendidit); if the 
contract was nameless, it was described in the praescriptio, 
which was a substitute for the demonstratio, by a circumlocu- 
tion, and the action was called actio praescriptis verbis, 8 $$ 
90,91. That a demonstratio was found in actions ex maleficio 
appears from Gaius, below, $ 60, and from Paulus, Collatio, 2, 6. 
Sicut formula posita est: Quod Auli Ageri? pugno mala percussa est ; 
Illud non cogitur dicere, dextra an sinistra, nec qua: manu percussa 
sit. Ita si dieat infamatum se esse, debet adjicere quemadmodum 
infamatus sit. Sic enim et formula concepta est: Quod Numerius 
Negidius libellum (or sibilum) immisit. Aulo Agerio infamandi causa. 
‘As the formula is worded: Whereas Aulus Agerius was struck on the 
cheek by the fist; the plaintiff is not compelled to declare whether 
he was struck on the right or left cheek, or whether with the right 
or left hand. And if he sue for defamation, he must allege the 
means, for so the formula is framed: Whereas Numerius Negidius 


496 DE ACTIONIBUS. [1v. $$ 39—44. 


(hissed or) published a libel against Aulus Agerius with the purpose 
of defamation.’ 

The absence of a demonstratio i in the formula of condictio certi 
may be inferred from the example given by Gaius, $ 86, and from 
the assertion of Cicero, Pro Roscio Comoedo, 4, that it did not 
appear whether Fannius, who sued Roscius by condictio certi, 
founded his claim on mutui datio, expensilatio, or stipulatio. He 
could hardly have asserted this, if the title on which Fannius sued 
had been expressed in a demonstratio. On the other hand, we have 
& demonstratio in the condictio incerti, $ 186, $ 137. It is obvious 
that if a man sues for an indeterminate sum of money he ought to 
give the defendant some further information of the cause of action ; 
but if he sues for a determinate sum or a definite thing, the de- 
fendant can scarcely be ignorant of the cause of action on which 
the plaintiff relies. 

$ 42. The adjudicatio was only found in the three ac actions familiae 
erciscundae, communi dividundo, and finium regundorum. It was 
not a declaration of existing property, but a transfer of property to 
one of the litigants from the other. Adjudicatione dominia nan- 
ciscimur ... nam si judex uni ex heredibus aut sociis aut vicinis 
rem aliquam adjudicaverit, statim illi adquiritur sive mancipi sive 
nec mancipi sit, Ulpian, 19, 16. ‘Adjudication is a transfer of 
dominion, for the successor, partner, landowner, to whom a thing 
is adjudicated by the judex, forthwith acquires property therein, 
whether it is mancipable or not mancipable. In quibus tribus 
judiciis permittitur judici, rem alicui ex litigatoribus ex aequo et 
bono adjudicare, et, si unius pars praegravare videbitur, eum in- 
vicem certa pecunia alteri condemnare, Inst. 4, 6, 20. ‘In these 
three actions the judge has the power to assign a thing on reason- 
able grounds to one of the litigants, and, if he thus obtain more 
than his share, to condemn him to make pecuniary compensation.” 

§ 43. Taxatio [signified by the word ‘dumtaxat’] was a limita- 
tion to the condemnatio, §§ 51,52. Besides the kind noticed by 
Gaius, there were several others. If a paterfamilias was sued for 
the debt of a person in his power whom he had authorized to trade, 
the condemnation was limited to the amount of the peculium 
(quatenus in peculio est); if the slave or son had traded without 
authority, it was limited to the amount of profit the father or 
master had thereby received (quatenus in rem ejus versum est); if 
the heir of à wrong-doer or fraudulent debtor was sued, it was 











rv. §§ 39-44.] | BENEFICIUM COMPETENTIAE. 497 


limited to the amount that he gained from the wrong or fraud by 
his succession (dumtaxat in id quod ad eum pervenit), §§ 72, 73. 

Again some debtors enjoyed a privilege that is called Beneficium 
competentiae: the privilege of not being condemned to pay the 
whole amount of their debt but only such an amount as will leave 
them the means of subsistence (condemnatio in id quod debitor 
facere potest). Cf. Inst. 4, 6, 87, 88. A soldier sued by any 
ereditors; a bankrupt who has made cessio bonorum, sued by 
his original creditors in respect of after-acquired property; a 
person sued on becoming a paterfamilias by a creditor for & 
debt incurred when he was a filiusfamilias; an ascendant sued 
by a descendant; a husband sued by a wife or a wife by a 
husband before or after divorce for a debt incurred during mar- 
riage; a father-in-law sued by a son-in-law for a promised dower ; 
a donor sued by a donee; a partner sued by a partner; were only 
lable to be condemned in such a sum as would leave them the 
necessaries of life. The privilege was enforced by Exceptio, 
Dig. 44, 1, 22. It was forfeited by dolus and did not apply to 
liabilities arising from delict. If & privileged debtor was con- 
demned in the whole amount of his fortune he could claim to 
have a deduction for his means of subsistence made in the levy 
of execution. 

The obligation of the privileged debtor, however, was not extin- 
guished until his creditor had received full satisfaction, and any 
after-acquired property of the debtor was liable to the claims of the 
creditor. Accordingly, at the period when Res judicata operated 
either ipso jure or per exceptionem to extinguish a right of action, 
8 § 180, it was necessary, in order to preserve the creditor's right 
of subsequent action for the residue, that the judge, as a condition 
of allowing the Beneficium competentiae, should compel the debtor 
to enter into a stipulation on which a subsequent suit could be 
grounded. At a later period, when Res judicata had lost its power 
of necessary Novation, it was no longer requisite to exact this 
cautio from the debtor before he was allowed to enjoy the Bene- 
fieium eompetentiae. Vangerow, $ 174. 

$44. A prejudicium is mentioned, 3 § 123, to try whether a 
ereditor had openly declared to the sureties the amount of the debt 
and number of sureties; on which facts would depend the several 
liabilities of each individual. 

When Manus had fallen into desuetude, Dos, the contribution of 

' Kk 


498 DE ACTIONIBUS. [rv. $$ 39-44. 


the wife to the expenses of matrimony, became during the subsist- 
ence of the marriage tie the property of the husband, 2 $ 63, but 
ceased to be his property at its termination. The law, how- 
ever, by a partial EXTINCTION of the dower allowed him to retain 
whatever necessary outlay he had made for its conservation: Im- 
pensae necessariae dotem ipso jure minuunt, Dig. 28, 2, 61. Cf. 
$102, comm. If, now, we assume with Ihering that there was 
& period when every action was required to have an intentio certa, 
§ 50, we can understand the necessity of a praejudicium to ascertain 
quanta dos sit, For when the divorced wife sued for restitution 
of her dower, having no means of knowing the amount of her 
husband’s outlay upon it or what portion of his outlay was neces- 
sary to its conservation, she would certainly have incurred the 
penalties of plus petitio, § 53, if she was not allowed to ascertain 
by a preliminary issue the amount of the dower after deduction of 
the necessary outlay. See § 115, comm. 

So when by the lex Falcidia all legacies were proportionally 
abated until a fourth remained to the heir, it was necessary, in 
order to enable the legatee to avoid plus petitio, to allow him to 
ascertain the amount of the inheritance by a preliminary inquiry : 
Cum dicitur lex Falcidia locum habere, arbiter dari solet ad in- 
eundam quantitatem bonorum, Dig. 35, 3,1, 6. ‘When Falcidia 
is alleged to be applicable, an arbiter is appointed to ascertain the 
amount of the inheritance. 

Could a Formula consist solely of a Demonstratio and a Con- 
demnatio? Yes, if Savigny is right in supposing, § 312, that the 
Praetor sometimes granted a Formula of the following shape : 

Quod Aulus Agerius juravit, Numerium Negidium fundum 
Cornelianum ipsi dare oportere, quanti is fundus est, eum con- 
demna. ‘ Whereas the plaintiff has sworn that the defendant owes 
him such and such a thing, do thou, judex, condemn the defendant 
to pay him its value.’ 

To explain this we must notice a peculiar use of the oath (jus- 
jurandum) in Roman litigation. 

The Teutonic tribes, including our ancestors, allowed a defendant 
to purge himself by his own oath supported by the oath of a certain 
number of his neighbours; of which institution we have a vestige 
in the Wager of law, which was recently an incident of the action 
of Detinue, in which the defendant might clear himself by his own 
oath and that of eleven compurgators. With such principles of 





CONCEPTIO FORMULARUM. 


Iv. $$ 45-52.] 499 


Evidence it is not surprising that in the German forests the struggle 
between litigants was not, who should escape the burden of proof 
but, who should enjoy the privilege of proof. The Roman method 
was not so liable to abuse. Either litigant might tender (deferre, 
delatio) an oath to his adversary, i.e. offer to be concluded by his 
adversary’s oath, on an issue either of fact or of law (obligation, 
property, succession, &c). The oath was then equivalent to a judg- 
ment in favour of the person by whom it was sworn, Inst. 4, 18, 4. 
If a litigant was prepared to take an oath his adversary might re- 
lease him from actually swearing (dare, praestare, jusjurandum) ; but 
this release (remittere, remissio) was equivalent to an actual oath. 
Instead of taking & tendered oath, the adversary might make a 
eounter-tender (referre, relatio), i.e. submit the issue to the oath 
of the original tenderer. To decline either to swear or to make 
a counter-tender was equivalent to a confession of the party who 
declined, or to an oath of the party who tendered. From this 
necessity imposed on the party to whom it was tendered, the oath 
was called jusjurandum necessarium, Dig. 12, 2, 34,6. If now on 
a tender or counter-tender by a defendant a plaintiff swore to the 
justice of his claim, the assessment of damages (rei aestimatio) 
would still remain as a question for the judex, and the praetor 
would give him a formula consisting, as above, of a Demonstratio 
and a Condemnatio. (But see Lenel, das Edictum Perpetuum, 
54. 

Sie idarly in case of a Confessio in jure where anything but 
pecunia certa was admitted to be due, a litis aestimatio would be 
necessary, of which the formula would be: Quod Numerius Ne- 
gidius in jure confessus est, fundum illum Aulo Agerio se dare 
oportere, Quanti is fundus est, judex, Numerium Negidium Aulo 
Agerio condemnato : si non paret absolve. Savigny, $ 308. 


CONCEPTIO FORMULARUM. 





$45. Sed eas quidem formulas in 
quibus de iure quaeritur, in ius 
conceptas .uocamus, quales sunt 
quibus intendimus NOSTRVM ESSE 
ALIQVID EX IVRE QVIRITIVM, aut 
NOBIS DARI OPORTERE aut PRO 
FVRE DAMNVM (DECIDI OPORTERE; 
tn) quibus iuris ciuilis intentio est. 


$45. A formula is framed to 
embrace an allegation of law when 
it raises & question of right; when, 
for instance, we declare ourselves 
proprietors by the law of the Qui- 
rites, or assert that the defendant is 
bound to convey to us or to make 
composition as a thief; for in these 
and the like cases we appeal to a. 
principle of civil law. 


Kk2 


500 


$ 46. Ceteras uero in factum 
conceptas uocamus, id est in quibus 
nulla talis intentio concepta est, 
(sed) initio formulae nominato eo 
quod factum est, adiciuntur ea 
uerba per quae iudici damnandi 
absoluendiue potestas datur : qualis 
est formula qua utitur patronus 
contra libertum qui eum contra 
edictum praetoris in ius wocauit ; 
nam in ea ita est REOVPERATORES 
SVNTO. SI PARET ILLVM PATRONVM 
AB ILLO LIBERTO CONTRA EDICTVM 
ILLIV8 PRAETORIS IN 1V8 VOCATVM 
ESSE, RECVPERATORES ILLVM LI- 
BERTVM ILLI PATRONO SESTERTIVM 
X MILIA CONDEMNATE. BRI NON 
PARET, ABSOLVITE. ceterae quoque 
formulae quae sub titulo DE IN 
IVS VOCANDO propositae sunt, in 
factum conceptae sunt, uelut ad- 
uersus eum qui in ius uocatus neque 
uenerit neque uindicem dederit ; 
item contra eum qui ui exemerit 
eum qui in ius uocatur ; et denique 
innumerabiles eius modi aliae form- 
ulae in albo proponuntur. 

$ 47. Sed ex quibusdam causis 
praetor et in ius et in factum con- 
ceptas formulas proponit, ueluti 
depositi et commodati. illa enim 
formula quae ita concepta est IYDEX 
ESTO. QVOD A. AGERIVS APVD N. 
NEGIDIVM MENSAM ARGENTEAM 
DEPOSVIT, QVA DE RE AGITVB, QVID- 
QVID OB EAM REM N. NEGIDIVM A. 
AGEBIO DARE FACERE OPORTET EX 
FIDE BONA, EIVS IVDEX N. NEGI- 
DIVM A. AGERIO CONDEMNATO, NISI 
BESTITVAT. 81 NON PARET, ABSOL- 
VITO, in ius concepta est. a£ illa 
formula quae ita concepta est IVDEX 
ESTO. SI PARET A. AGEBIVM APVD 
N. NEGIDIVM MENSAM ARGENTEAM 
DEPOSVISSE EAMQVE DOLO MALO N. 
NEGIDI A. AGERIO REDDITAM NON 
ESSE, QVANTI EA RES ERIT, TANTAM 
PECVNIAM IVDEX N. NEGIDIVM A. 
AGERIO CONDEMNATO. BI NON PA- 
BET, ABSOLVITO, in factum con- 


DE ACTIONIBUS. 


$ 46. It is framed to contain an 
allegation of fact when it contains 
no such appeal; but, after proposing 
a fact, proceeds at once to the Con- 
demnatio and Absolutio; asin an 
action by a patron against a freed- 
man for a summons in contraven- 
tion of the edict. The formula 
then runs thus: ‘ Let M N be recu- 
perators. If it be proved that such 
and such a patron was summoned 
to appear by such and such a freed- 
man against the edict of such and 
such a praetor, do you, recuperators, 
condemn the said freedman to pay 
io the said patron ten thousand 
sesterces; if it be not proved, pro- 
nounce his acquittal.’ The other 
formulas relating to summonses 
raise questions of fact, as the for- 
mula in an action against a defend- 
ant who on service of summons 
neither appears nor finds a vindex, 
or against a person who makes a 
violent rescue of a person summoned 
to appear, and many other formulas 
in the praetor's album. 

$47. Some actions may be in- 
stituted by formulas either of law 
or of fact, as for instance the actions 
of Deposit and Loan for use. The 
following formula: ‘Let C D be 
judex. Whereas Aulus Agerius 
deposited a silver table in the 
hands of Numertus Negidius, which 
is the ground of action, whatso- 
ever it be proved that Numerius 
Negidius is on that account bound 
by good faith to convey or render 
to Aulus Agerius, do thou, judex, 
condemn Numerius Negidius to pay 
its value,unless he make restitution; 
if it be not proved, pronounce his 
acquittal:’ is a formula of law. A 
formula thus framed : * Let C D be 
judex. If it be proved that Aulus 
Agerius deposited a silver table in 
the hands of Numerius Negidius, 
and that by the fraud of Numerius 
Negidius it has not been restored to 








1v. $$ 45-52. | 


cepta est. similes etiam commodati 
formulae sunt, 


$ 48. Omnium autem formu- 
larum quae condemnationem ha- 
bent, ad pecuniariam aestimationem 
condemnatio concepta est. itaque 
et si corpus aliquod petamus, ueluti 
fandum hominem uestem (aurum) 
argentum, iudex non ipsam rem 
condemnat eum cum quo actum est, 
sicut olim fieri solebat, (sed) aesti- 
mata re pecuniam eum condemnat. 

$ 49. Condemnatio autem uel 
certae pecuniae in formula pro- 
ponitur uel incertae. 

$ 50. Certae pecuniae uelut in 
ea formula qua certam pecuniam 
petimus; nam illic ima parte for- 
mulae ita est IVDEX N. NEGIDIVM A. 
AGERIO SESTERTIVM X MILIA CON- 
DEMNA. SI NON PABET, ABSOLVE. 

$ 51. Incertae uero condemnatio 
pecuniae duplicem significationem 
habet. est enim una cwm aliqua 
praefinitione, quae uulgo dicitur 
cum taxatione, uelut si incertum 
aliquid petamus; nam illic ima 
parte formulae ita est IVDEX N. 
NEGIDIVM A. AGERIO DVMTAXAT 
BESTERTIVM X MILIA CONDEMNA. SI 
NON PARET, ABSOLVE. uel incerta 
est et infinita, uelut si rem aliquam 
a possidente nostram esse petamus, 
id est si in rem agamus uel ad ex- 
hibendum; nam illic ita est QVANTI 
E4 RES ERIT, TANTAM PECVNIAM, 
IVDEX, N. NEGIDIVM 4. AGERIO CON- 
DEMNA. BI NON PARET, ABSOLVITO. 
quid ergo est? iudex si condemnet, 
certam pecuniam condemnare debet, 
etsi certa pecunia in condemnatione 
posita non sit. 

$ 52. Debet autem iudex atten- 
dere, ué cum certae pecuniae con- 


CONCEPTIO FORMULARUM. 


501 


Aulus Agerius, do thou, judex, con- 
demn Numerius Negidius to pay 
Aulus Agerius whatever shall be 
the value of the table; if it be not 
proved, pronounce his acquittal :’ 
is a formula of fact. And there is 
& similar alternative in the case of 
Loan for use. 

$ 48. The condemnatio is always 
to pay & pecuniary value. Even 
when we claim a corporeal thing, an 
estate in land, a slave, a garment, 
an article of gold or silver, the 
judex condemns the defendant to 
deliver not the thing itself, as in 
the elder system, but its value in 
money. 


$ 49. The formula either names 
8 certain sum in the Condemnatio 
or an uncertain sum. 

$ 50. In & condictio when it 
names a certain sum, it concludes as 
follows: ‘ Do thou, judex, condemn 
Numerius Negidius to pay Aulus 
Agerius ten thousand sesterces; 
if 1t be not proved, absolve him.' 

$ 51. An uncertain sum is either 
named with a limitation or maxi- 
mum, for instance, thus: ‘Do thou, 
judex, condemn Numerius Negidius 
to pay Aulus Agerius not more than 
ten thousand sesterces ; if it be not 
proved, absolve him ;’ or it is named 
without a limitation, as when we 
demand our property from the pos- 
sessor in & real action, or demand 
the production of a person or thing 
in a personal action, where the con- 
clusion runs as follows: ‘Do thou, 
judex, condemn Numerius Negidius 
to pay Aulus Agerius whatever shall 
be the value ; if it be not proved, 
absolve him.’ But whatever the 
claim, the judex must condemn the 
defendant to pay a definite sum, even 
though no definite sum is named in 
the condemnatio. 

$ 52. When a certain sum is 
Jaid in the condemnatio, he must 


502 


demnatio posita sit, neque maioris 
neque minoris summa posita con- 
demnet, alioquin litem suam facit. 
item si taxatio posita sit, ne pluris 
condemnet quam taxatwm sit, alias 
enim similiter litem suam  facif. 


DE ACTIONIBUS. 


[1v. $$ 45-52. 


be careful not to condemn the 
defendant in a greater or lesser 
sum, else he makes himself liable 
to damages: and if there is a limi- 
tation he must be careful not to 
exceed the maximum, else he is 


minoris autem damnare ei permis- 
sum est. at si etiam |—| qui 
formulam accipit, intendere debet, 
nec ampéi?us| certa condemna- 
tione constringi—| | | 
usque uelit. 


similarly liable; but he may con- 
demn him in less than the maximum. 














§ 45. In an action with a formula in factum concepta, the In- 
tentio, Si paret fecisse, ‘If it appear that the defendant has done 
this or that ’—‘ If the defendant's act place him in a certain class,’ 
corresponds to the minor premiss of a syllogism of which the con- 
clusion is: * Then this defendant is under such and such an obliga- 
tion to this plaintiff,’ or ‘This defendant is condemnable to perform 
such and such a service to this plaintiff.’ The major premiss will 
be: ‘All persons who have done such and such an act,’ or, ‘who 
belong to such and such a class, are under such and such an 
obligation,’ or ‘are compellable to render such and such a service 
to such and such a plaintiff.’ This major premiss is withdrawn from 
discussion, is not permitted to be disputed; and the issue in such 
an action can only relate to the minor premiss; in other words, is 
always an issue of fact. 

In an actio with a formula in jus concepta, the intentio, Si paret 
oportere, ‘If it appear that the defendant is under such and such 
an obligation,’ corresponds to the conclusion of a syllogism of which 
the minor premiss is; ‘The defendant belongs to such and such a 
class: and the major: ‘All persons belonging to such and such 
a class are under such and such an obligation? The major premiss 
may be an alleged rule either of law or of equity, a proposition 
either of civil law or of praetorian law ; and in neither case is it with- 
drawn from discussion. The issue, that is to say, in an action with 
a formula in jus concepta may either relate to the minor or to the 
major premiss: may be either an issue of fact or an issue of law. 

The following passage of Cicero speaks of actions whose formula 
was in jus concepta with the additional terms, ex fide bona or the like; 
and which therefore involved an issue of equity. Privata enim 
judicia maximarum quidem rerum in juris consultorum mihi 
videntur esse prudentia. . . . In omnibus igitur iis judiciis in 





Iv. §§ 45—52.] CONCEPTIO FORMULARUM. 503 


quibus EX FIDE BONA est additum ; ubi vero etiam UT INTER BONOS 
BENE AGIER; in primisque in arbitrio rei uxoriae, in quo est, QUOD. 
AEQUIUS MELIUS, parati esse debent. Ith enim dolum malum, 
illi fidem bonam, illi aequum bonum, illi quid socium socio, quid 
eum qui aliena negotia curasset ei cujus ea negotia fuissent; quid 
eum qui mandasse eumve cui mandatum esset alterum alteri 
praestare oporteret, quid virum uxori, quid uxorem viro, tradiderunt, 
Topica, 17. ‘Private suits of the highest importance turn on the 
doctrines of the jurist. . . . In all the actions, therefore, where the 
judge is instructed to look to the requirements of good faith, to the 
practice of honest men, or, as in the suit of a wife against her 
husband, to what is good and equal, the jurist should be ready to 
speak. For he is the authority on what constitutes fraud or good 
faith, what is good and equal, what are the mutual duties of 
partners, of principal and agent, whether authorized or unauthorized, 
of husband and wife.’ $$ 18-20, comm. 

Many questions of law were undoubtedly decided at the initial 
stage of an action, in jure, at the appearance before the tribunal or 
curule chair of the praetor. At this appearance the parties were 
attended by counsel (haerere in jure atque praetorum tribunalibus 
[advocatos] De Oratore, 1, 88); and here, though the praetor 
would not settle a dispute about facts, many demurrers or simple 
issues of law or equity might be decided, and the controversy might 
be terminated without ever reaching the stage of reference to a 
judex. The praetor, however, had no leisure to determine compli- 
eated issues of law or equity, and these were accordingly referred 
to a judex or arbiter by a formula in jus concepta. 

§ 46. According to the Institutes, a man might not summon his 
patron or parent to appear in an action without the permission of 
the praetor, under a penalty of fifty solidi, Inst. 4, 16, 3. A solidus 
or aureus was a hundred sesterces, so that we must either, with 
Savigny, for ten thousand read five thousand sesterces in the text 
of Gaius, or suppose that Justinian reduced the penalty to half its 
original amount. | 

In the formulary system an appearance of the defendant before 
the praetor (in jure) was indispensable às the first stage of an action. 
In English law, after service of summons or proof that all proper 
means for the service of summons have been used in vain, the court 
will grant leave to the plaintiff to enter an appearance for the 
defendant. But in Roman law an original appearance of the de- 


504 DE ACTIONIBUS. [rv. 8$ 45-52. 


fendant at the commencement of the action was indispensable. 
On service of a summons (in jus vocatio) he was bound either to 
obey at once and accompany the plaintiff into court, or to send a 
responsible representative (vindex, $ 46) in his stead, or to find 
security, called cautio judicio sisti (to be thus interpreted : cautio 
sisti in jure ad judicium ordinandum), for his appearance in jure on 
a future day. If he took none of these steps he was liable to an 
actio in factum, and he might be apprehended and taken by force 
(duci in jus, Dig. 2, 8, 5); and any person who made a violent 
rescue was liable to be condemned by actio in factum to pay the 
amount of the plaintiff's claim, quanti ea res est ab actore aesti- 
mata, Dig. 2, 7, 51. At the first appearance in court, after the plain- 
tiffs indication of the action he meant to bring (editio actionis), 
the defendant was required to give security (vadimonium, or cautio 
judicio sisti) for his second appearance in court to receive a judex. 
At the second appearance, after the nomination (addictio) of the 
judex and the joinder in issue or delivery of the formula (litis con- 
testatio, judicium ordinatum, judicium acceptum), there was (at all 
events in the legis actiones) an adjournment to the next day but 
one (comperendinatio), and on this day the trial before the judex 
(judicium) proceeded. In the formulary system, then, there were 
two appearances in jure, one in obedience to the in jus vocatio, and 
a second for the assignment of a judex. In the Libellary system 
which prevailed in the time of Justinian the former of these ap- 
pearances was suppressed, and instead thereof the plaintiff by a 
libellus conventionis sued out from the court & commonitio or 
summons to the defendant to appear before the court. On the 
service of this by a public officer the defendant was required to 
give cautio judicio sisti, security for his appearance for the arrange- 
ment of a judicium, and in default thereof was arrested, § 184 comm. 

$47. The formula says Ejus [aestimationem] condemnato, not 
Id condemnato, because the Condemnatio did not impose specific 
performance but only pecuniary compensation. Bethmann-Hollweg 
§ 87. The lawyers manual of practice contained alternative 
formulae for the same ground of aetion. Sed tamen non parcam 
operae, et ut vos in vestris formulis, sic ego in epistolis, de eadem re 
alio modo, Cicero ad Familiares, 18, 27. * However, I will spare no 
trouble, and as you lawyers do in your books of formulae, I will pre- 
gent you in my correspondence with the same matter in another form.’ 
Quae cum Zeno didicisset a nostris, ut in actiontbus praescribi so- 














vi. $$ 45-52.] FORMULA ARBITRARIA. 505 


let, de eadem re dixit alio modo, De Finibus, 5,19. * Zeno learnt this 
from the teachers of our school, and then, as the headings of the 
formulae say, handled the same subject in a different form.’ 

One great advantage of the actiones in factum was that they 
were available to filii familiarum. In factum actiones etiam fili 
familiarum possunt exercere, Dig. 44, 7, 18. It may have been for 
the purpose of enabling filii familiarum to sue that formulae in 
factum were given in some actions as well as formulae in jus. Cf. 
] $ 55, comm. 

We shall see hereafter that actio in factum differed from actio in 
jus in respect of (1) Plus petitio and in respect of (2) Novatio. 

(1) An actio with a formula in factum concepta, having an in- 
tentio or formula certa, would be capable of plus petitio: while an 
aetio with a formula in jus concepta, though based substantially on 
the same grounds, having an intentio or formula incerta, would be 
incapable of plus petitio, $ 60. 

(2) Novatio was only produced by Litis contestatio when the 
formula was in jus concepta, $ 107. 

The words Nisi restituat, exhibeat, are the clause which consti- 
tutes a formula arbitraria. In the formulary system the condem- 
nation was always pecuniary; the defendant was always condemned 
by the judgment to pay the plaintiff à sum of money. By means, 
however, of the alternative clause in a formula arbitraria the 
plaintiff could recover a specific thing or enforce a specific per- 
formance. Empowered by this clause the judex made a preliminary 
order (jussus, arbitrium) for the restitution or performance; and 
if it was obeyed the defendant was absolved, if it was disobeyed the 
pecuniary condemnation was the penalty of disobedience. Inst. 4, 
6, 31. | 

Actiones arbitrariae included Real actions, framed as formulae 
petitoriae, $ 92 (e.g. vindieatio, publiciana, hereditatis petitio, 
eonfessoria, hypothecaria), and such bona fide actions (e.g. depositi, 
eommodati, locati, tutelae, rei uxoriae) and praetorian actions 
(e.g. doli, metus, interdictum de vi, $ 168) as were brought to 
obtain Restitution. The formula arbitraria, accordingly, could not 
be used in an actio empti, for though this was a bona fide action, 
yet the specific performance (traditio) sought to be enforced was not 
of the nature of a Restitution: nor could the formula arbitraria be 
employed in actions stricti juris, i.e. either condictions or actions 
founded on delict. 





506 DE ACTIONIBUS. [1v. 8$ 45-52: 


Of the formula arbitraria in & real action with a formula peti- 
toria we have an instance in Cieero ; Lucius Octavius judex esto : 
Si paret. fundum capenatem, quo de agitur, ex jure Quiritium 
[Auli Agerii] esse, neque is fundus [Aulo Agerio] restituetur, In 
Verrem, 2, 2, 12. In an action for the production as a prelim- 
inary to the restitution of a person or thing (ad exhibendum) the 
clause would be of the form nisi exhibeat, and generally some 
special modification of nisi actori satisfaciat. In noxal actions 
§ 75, there was probably no clause nisi noxae dedat, but the 
judgment was of the form Publium Maevium Lucio Titio decem 
aureis condemno aut noxam dedere, Inst. 4, 17; for the defendant 
was intended to exercise the election of paying damages or surren- 
‘dering the author of the mischief. But in other actions no such 
discretion was intended to be given, and the damages were meant 
as a penal sum to enforce obedience to the judge's order. This 
object was enforced by Jusjurandum in litem, an institution that 
will be presently explained. 

As soon as the rule was established : omnia judicia esse absolutoria, 
§ 114, that in every action a defendant might avoid condemnation 
by satisfying the plaintiff's claim even after the commencement of 
the suit, it might seem that the formula arbitraria was rendered 
unnecessary. But this was not so; for whereas in other actions 
the defendant might hope for à judgment in his favour, in actio 
arbitraria as soon as the arbitratus or order was pronounced he 
would know that he would inevitably be condemned unless he made 
the restitutio or exhibitio required. The formula arbitraria would, 
however, become in most cases unnecessary in the last period of 
Roman law when, as we shall presently see, the defendant was not 
invited under pain of heavy damages, but compelled by the publie 
force (manu militari), to make specific restitution. 

The intentio of an action with a formula in faetum concepta was 
sometimes one-limbed : e.g. Si paret . . . . vocatum esse, § 46, and 
sometimes two-limbed : e.g. Si paret (1) Aulum Agerium rem de- 
posuisse (2) eamque dolo malo Numerii Negidii Aulo Agerio reddi- 
tam non esse, § 47. A one-limbed intentio would be used when the 
defence was a simple traverse or contradiction of the fact alleged by 
the plaintiff: a two-limbed formula would be used when the de- 
fendant confessed the fact alleged by the plaintiff but alleged a 
second fact (payment, release, novation, &.) whereby the obligation 
created by the former was extinguished or counteracted. 


rv. $$ 45-52.] FORMULA ABBITRARIA. 507 


Accordingly it would be a mistake to suppose that the clause: 
eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse 
was equivalent to the arbitratus or clause Ni restituat which in the 
preceding formula limits the condemnatio. The former clause raises 
the question whether restitution was made before the action was 
brought (ante judicium acceptum): the clause Ni restituat gives 
the defendant power to make restitution at any time after the 
action was brought but before the condemnatio: and there is no 
reason why the clause Ni restituat should not be added to the 
double-limbed as well as to the single-limbed formula in factum 
concepta or the formula in jus concepta. The position of the 
elause Nisi restituat varied: (1) in real and praetorian personal 
actions with an intentio in factum concepta, the words Neque ea 
res arbitrio judicis restituetur, D. 4, 2, 14, 11, intervened between 
the intentio and condemnatio, (2) in a bonae fidei actio Nisi restituat 
followed the first clause of the condemnatio, $ 47. The Edict 
used the clause Nisi restituat or its equivalent in other actions 
which are not Arbitrariae: e.g. Nautae, caupones, stabularii, quod 
cujusque salvum fore receperint, id Nisi restituent, in eos judicium 
dabo, D. 4, 9, 1; and against Publicani, D. 839, 4, 1, pr. Here the 
non-restitution would form a part of the intentio, and would refer 
to the time before Litis contestatio. In actio Constitutae pecuniae 
the intentio was composed of three allegations: a pre-existing debt, 
@ promise to pay, and its non-fulfilment, $ 171, comm. 

$ 48. From the expression of Gaius, non ipsam rem condemnat 
sicut olim fieri solebat, we might suppose that statute-process (legis 
actio) differed from Formulary procedure in that, while in the latter 
the condemnation was always pecuniary, in the former, as in the 
last stage of Roman law, the plaintiff recovered the specific object 
of litigation and not ite pecuniary value. But it would be strange if 
Roman jurisprudence had thus retrograded, and its second stage had 
been less perfect than its first: and the meaning of Gaius doubt- 
less is, that, whereas in the Formulary system a single action decided 
the claims of the plaintiff and assessed their money value, in the primi- 
tive system two actions were necessary ; a principal action to decide 
on the justice of the plaintiff’s claim, and a supplementary action 
(arbitrium liti aestimandae) to transform it into money. Probus 
apparently gives the terms in which the plaintiff who had succeeded 
in his principal suit demanded an arbiter to assess the damages: Ar- 
bitrum liti aestimandae postulo te, Praetor, uti des. This arbitrrum 


508 DE ACTIONIBUS. [1v. $$ 45-52. 


was not reckoned among the forms of Statute-process because it 
was merely aecessory to the principal action. Bethmann-Hollweg, 
§ 87. 

Two incidents of litis aestimatio in the formulary procedure 
deserve notice: (1) Jusjurandum in litem, and (2) the determination 
of the Moment to be considered by the judex in appraising the 
value of the plaintiff's interest. 

(1) Jusjurandum in litem was not like jusjurandum necessarium 
a substitute for a judgment, but only one of the means of proof 
whereon in certain actions a judgment might be founded. These 
actions were (4) principally actiones arbitrariae. To induce the 
defendant to avoid condemnation by obedience to the judge’s arbi- 
tratus, if the defendant contumaciously refused obedience, or by 
dolus or culpa lata bad rendered himself unable to yield obedience 
to the order of the judex, the value of the plaintiff’s interest in the 
subject of litigation (litis aestimatio) was not ascertained, as in other 
cases, by the judex with or without the aid of experts, but by the 
oath of the plaintiff. Although he was required to name the true 
value (quanti actoris intersit) not a mere fancy value or so-called 
value of affection, yet his conscientious estimate would naturally be 
higher than that of an impartial judge or disinterested valuer: and 
the largeness of the alternative condemnation would incline the 
defendant to make a specific restitution. 

(P) Even in actiones stricti juris, if litis aestimatio, owing to the 
culpa of the defendant, is otherwise impossible to the judex ; if, for 
instance, in the actio legis Aquiliae the subject has ceased to exist, 
then the judex may employ the oath of the plaintiff as a subsidiary 
evidence of the plaintiff's particular interest in the subject and of 
its market value. Vangerow, § 171. 

(2) The Date of valuation, or time at which the value of the 
specifie thing due from the defendant was estimated, depended on 
the nature of the action. As a general rule the date of valuation in 
stricti juris actions was the date of Litis contestatio, in Bona fide 
and Real actions the date of Condemnatio, Dig. 13, 6, 3,2. But 
if a date for performance had been fixed in a contract that date was 
the date of valuation, Dig. 18, 8,4. Again if the defendant had 
been guilty of Mora, 2 $6 260—289 comm., the plaintiff had his 
election between any of these dates and the date of Mora, Dig. 19, 
1, 8, 8, Dig. 17, 1, 87. The foregoing only relates to Real actions 
and Personal actions grounded on Dispositions (contracts and quasi- 





1v. $$ 45-52.] IUSIURANDUM IN LITEM. 509 


contracts); in personal actions grounded on Delict, the date of 
valuation was the date of delict, the date, in other words, of the 
inception of obligation. 

'These different dates for valuation were expressed in the formula 
by a different wording of the Condemnatio. In Real actions, $ 51, 
and in Bona fide actions, $ 47, where the date was the date of 
passing judgment or condemnation, the formula contained the 
words: quanti ea res eri; in delicts where the date of valuation 
was the date of delict, it contained the words: quanti ea res fuit, 
Dig. 9, 2, 2. No traces exist of the formula employed in Con- 
dictions whose time of estimation was the time of Litis contestatio; 
but there can be little doubt that it contained the words: quanti ea 
res est, Savigny, § 275. 

It has already been mentioned, 3 § 212, that the value assessed 
might be not simply the market value of the thing but its value to 
the plaintiff, including mediate as well as immediate value. 

In the legislation of Justinian the rules respecting litis aestimatio 
were of less importance, because the condemnatio was in many cases 
no longer pecuniary but commanded the conveyance of property 
(dare), delivery of possession (tradere), restitution (restituere), or 
production (exhibere), of the specific thing itself that was the 
original subject of litigation. The defendant was no longer invited, 
as in the actio arbitraria of the formulary system, but compelled 
by the armed force of the state, to make specific delivery or re- 
stitution, Dig. 6, 1, 68. ‘If a defendant allege inability to obey 
an order of restitution, if the thing exists, the court uses the mili. 
tary power to put the plaintiff in possession, and only condemns 
the defendant for the mesne profits and deteriorations. If the 
defendant has maliciously disabled himself from restitution, he is 
eondemned in the amount, subject to no taxation, at which the 
plaintiff on oath assesses his loss; if the inability is not maliciously 
produced, the judge assesses the damages. "This applies to all in- 
terdicts and actions, real and personal, where the court orders 
restitution. Only in certain obligations of performance or non- 
performance the condemnation was still pecuniary: Quia non facit 
quod promisit in pecuniam numeratam condemnatur, sicut evenit 
in omnibus faciendi obligationibus, Dig. 42, 1, 18. 

§ 49. In condictio Certi, as we have seen, § 5, both the Intentio 
and the Condemnatio are certae: in condictio Triticaria, as in Real 
actions, the Intentio, naming certa res, is certa; but the Condem- 


510 DE ACTIONIBUS. [rv. $$ 45-52. 


natio, containing the words, Quanti ea res est, is incerta. A loan 
(numeratio, mutuum) of money (pecunia certa credita) always gave 
rise to a condictio certi and could not be recovered by any other 
form of suit: whereas a loan of any other quantitas (corn, wine, 
oil, &c.) founded a condictio triticaria. The difference of the 
formulae in these actions explains the following rule of substantive 
law, which otherwise seems capricious: A valid informal con- 
vention (nudum pactum) for interest could be annexed to a loan 
of corn, wine, or oil, Cod. 4, 82, 28, but not to a loan of money, 
Dig. 19, 5, 24. 

The reason was this: the loan of any other quantitas than money, 
having an incerta condemnatio, allowed the judge of a suit brought 
for recovery of the principal to include interest in the sum which 
he condemned the defendant to pay: whereas the money loan 
having a certa condemnatio, coinciding with the intentio in the 
sum it defined, the judge of a suit brought for the principal, under 
pain of litem suam facere, $ 52, could only condemn the defendant 
to pay the principal. 

If, then, interest on a loan of money was intended to be paid, it 
was necessary to secure it by a formal contraet (stipulatio) which 
would found a condictio incerti distinct from the condictio certi 
which might be brought for the principal: whereas interest 
for any other quantitas could be secured by a pactum nudum 
annexed to the numeration, ponderation, or mensuration of the 
principal, Dig. 12, 1, 7, and recovered in the action brought for the 
principal. 

As the strmgency of the rule respecting money loans depended on 
the peeuliarity of the formula, it should not have been retained by 
Justinian after the abolition of the Formulary procedure. Savigny, 
System, $ 268. 

The wording of the formula in Condictio certi was doubtless the 
reason why in the Formulary period the legatee could not recover 
interest on his legacy, 2 § 280. 

§ 52. A judex might make a cause (liability, condemnation) his 
own by corruption or carelessness, Inst. 4, 5, 1. If he gave a 
wrong judgment from dolus, he was liable to be condemned in the 
whole amount under litigation, Dig. 5, 1, 15,1. If from culpa, he 
was liable to be condemned in such damages as the‘ judge in his 
discretion should assess, Dig. 50, 18, 6. 


rv. §§ 53-60. | 


PLUS PETITIO. 


§11 


PLUS PETITIO. 


§ 53. |Si quis intentione plus 
conplexus fuerit, causa cadit, | id 
est rem perdit, nec a praetore in 
integrum restituitur exceptis | qui- 
busdam casibus in qwibus——— 
praetor non patitur | | 


§ 53 a. Plus autem quattuor | 
modis petitur: re, tempore, loco, 
causa, re, ueluti si quis pro X | 
milibus quae ei debentur, XX milia 
petierit, aut si is cuius | ex parte res 
est, totam eam aut maiore ex parte 
suam | esse intenderit. 








$ 53 b. Tempore plus petitur, 
veluti si quis | ante diem petierit. 


$ 53 c. Loco plus petitur, ueluti 
si quod. certo loco | dari promissum 
est, id alo loco sine commemoratio|ne 
eius loci petatur, uelut si quis 
ita stipulatus fuerit EPHESI | DARE 
SPONDES? deinde Romae pure tn- 
tendat DARI SIBIOPORTERE.| | 
dare mihi oportere-————|—_—_ 

(2 uersus in C legi nequeunt) 
—— petere id est non adiecto loco. 

$ 53 d. Causa plus petitur, uelut 
81 quis in intentione tollat elec- 
tionem debitoris quam is habet 
obligationis iure: uelut si quis ita 
stipulatus sit SESTERTIVM X MILIA 
AVT HOMINEM  8TICHVM DARE 
SPONDES!, deinde alterutrum ex 
bis petat ; nam quamuis petat quod 
minus est, plus tamen petere uide- 
tur, quia potest aduersarius inter- 
dum facilius id praestare quod non 
petitur. similiter si quis genus 
stipulatus sit, deinde speciem petat : 
ueluti si quis purpuram stipulatus 
sit generaliter, deinde Tyriam 
specialiter petat; quin etiam licet 
uilissimam petat, idem iuris est 
propter eam rationem quam proxime 
diximus. idem iuris est, si quis 
generaliter hominem stipulatus sit, 





$ 53. If the Intentio claim more 
than the plaintiff is entitled to, he 
loses the whole, and 1s not relieved 
by the praetor except in a few cases 
where minors and others are not 
permitted to suffer the consequences 
of error (cf. Inst. 4, 6, 33). 

$53 a. À plaintiff claims too 
much in four ways, (1) in amount, 
(2) time, (3) place, (4) specifica- 
tion: in amount, if instead of ten 
thousand sesterces, which are due 
to him, he claims twenty thousand, 
or if being co-proprietor he claims 
as sole proprietor, or more than his 
share : 

$ 53 b. in time, if he demands to 
be paid at an earlier time than he 
stipulated : 

$ 53 c. in place, if he demands 
payment at a forum without con- 
fessing that it is not the place 
at which he contracted to be paid : 
if, for instance, having stipulated— 
‘Do you promise to pay at Ephe- 
sus?’ he subsequently sues at 
Rome for payment without refer- 
ring in his formula to Ephesus. 


$ 53 d. He claims too much by 
specification if he deprives the debt- 
or of an election to which he was 
entitled by the contract; for in- 
stance, if he stipulated to receive 
alternatively either ten thousand 
sesterces or the slave Stichus, and 
makes an unconditional claim for 
one or the other. For though the 
one that he claims be of lesser 
value, the other may be more con- 
venient for the debtor to convey. 
So if he stipulated for a genus and 
demands a species, stipulated, for 
instance, for purple and demands 
Tyrian purple, even though he de- 
mand the cheapest species, he 
claims more than his due, for the 
same reason. So he does if he 
stipulated generally for a slave and 





512 


deinde nominatim aliquem petat, 
uelut Stichum, quamuis uilissimum. 
itaque sicut ipsa stipulatio con- 
cepta est, ita et intentio formulae 
concipi debet. 

$ 54. Illud satis apparet in in- 
certis formulis plus peti non posse, 
quia, cum certa quantitas non peta- 
tur, sed QVIDQVID aduersarium DARE 
FACERE OPORTET intendatwr, nemo 
potest plus intendere. idem iuris 
est et si in rem incertae partis actio 
data sit: uelut talis QVANTAM 
PARTEM PARET IN EO FVNDO QVO 
DE AGITVR actoris ESSE; quod 
genus actionis in paucissimis causis 
dari solet. 

$ 55. Item palam est, si quis 
aliud pro alio intenderit, nihil eum 
periclitari eumque ex integro agere 
posse, quia nihil ante uidetur egisse: 
ueluti si is qui hominem Stichum 
petere deberet, Erotem petierit; aut 
si quis EX TESTAMENTO DARI sili 
OPORTERE intenderit, cui ex stipu- 
latu debebatur ; aut si cognitor aut 
procurator intenderit sibi DARI 
OPORTERE. 


$ 56. Sed plus quidem inten- 
dere, sicut supra diximus, pericu- 
losum est; minus autem intendere 
licet ; sed de reliquo intra eiusdem 
praeturam agere non permittitur. 
nam qui ita agit, per exceptionem 
excluditur, quae exceptio appellatur 
litis diuiduae. 

$57. Atsi in condemnatione plus 
positum sit quam oportet, actoris 
quidem periculum nullum est, sed 
(reus cum) iniquam formulam 
acceperit, in integrum restituitur, 
ut minuatur condemnatio. si uero 
minus positum fuerit quam oportet, 
hoc solum consequitur (actor) quod 
posuit; nam tota quidem res in 
iudicium deducitur, constringitur 
autem condemnationis fine, quam 
iudex egredi non potest. nec ex ea 
parte praetor in integrum restituit ; 


DE ACTIONIBUS. 


[1v. $$ 53-60. 


claims a certain slave, Stichus, for 
instance, however worthless. The 
Intentio, then, must exactly pursue 
the terms of the stipulation. 


$ 54. It is clear that an Intentio 
naming an uncertain sum cannot be 
excessive, for it claims no certain 
quantity, but only whatever the 
defendant ought to convey or per- 
form. The same is true of real 
actions to recover uncertain shares, 
as that whereby a heres claims 
whatever portion of the inheritance 
he may be entitled to, which kind 
of action is seldom granted. [Dig. 6, 
1, 76, 1.] 

$ 55. It is also clear that the 
plaintiff who claims the wrong thing 
in his Intentio, runs no risk and 
can bring another action because 
his right has not been tried, if he is 
entitled, for instance, to Stichus and 
claims Eros, or if he is entitled by 
stipulation and alleges in the Inten- 
tio that he is entitled under & will, 
or if & cognitor or procurator claim 
in his own right instead of in the 
right of his principal. 

§ 56. To claim too much, as I 
have said, is dangerous ; à man who 
claims less than his right does not 
forfeit his right, but cannot sue for 
the remainder in the same praetor- 
ship, for he is repelled by the ex- 
ception against Division of actions. 


§ 57. If too much is claimed in 
the Condemnatio the plaintiff is not 
imperilled, but has to submit to 
amendment of the formula by in 
integrum restitutio. If less is 
laid in the Condemnatio than he 
is entitled to, he only obtains that 
amount, for his whole right has 
been brought before the judex and 
is reduced to the amount laid in the 
Condemnatio, a limit which the 
judex cannot exceed; and in this 
case the praetor gives no relief, for 


Iv. $$ 53-60.] COMITY OF NATIONS, FORUM, LEX. 


facilius enim reis praetor succurrit 
quam actoribus. loquimur autem 
exceptis minoribus XXV annorum; 
nam huius aetatis hominibus in 
omnibus rebus lapsis praetor suc- 
currit. 

$ 58. Si in demonstratione plus 
aut minus positum sit, nihil in iudi- 
cium deducitur, et ideo res in 
integro manet; et hoc est quod 
dicitur falsa demonstratione rem 
non perimi 


§ 59. Sed sunt qui putant minus 
recte conprehendi, ut qui forte 
Stichum et Erotem emerit, recte 
uideatur ita demonstrare QvOD EGO 
DE TE HOMINEM EROTEM EMI, et 81 
uelit, de Sticho alia formula agat, 
quia uerum est eum qui duos 
emerit, singulos quoque emisse; id- 
que ita maxime Labeoni uisum est. 
sed si is qui unum emerit, de duo- 
bus egerit, falsum demonstrat. 
idem et in aliis actionibus est, 
ueluti commodati et depositi. 


$ 60. Sed nos apud quosdam 
seriptum inuenimus, in actione de- 
positi e£ denique in ceteris omni- 
bus ex quibus damnatus unusquis- 
que ignominia notatur, eum qui 
plus quam oporteret demonstra- 
uerit, litem perdere: ueluti si quis 
una re deposita duas pluresue (se 
de)posuisse demonstrauerit ; aut si 
is cui pugno mala percussa est, in 
&ctione iniuriarum etiam aliam 
partem corporis percussam sibi de- 
monstrauerit. quod an debeamus 
credere uerius esse, diligentius re- 
quiremus. certe cum duae sint de- 
positi formulae, alia in ius concepta, 
alia in factum, sicut supra quoque 
notauimus, et in ea quidem formula 
quae in ius concepta est, initio res 
de qua agitur demonstratorio modo 
designetur, deinde inferatur iuris 
contentio his uerbis QVIDQVID OB 
BAM REM ILLVM ILLI DARE FACEBE 


513 


he is more ready to relieve the de- 
fendant than the plaintiff, excepting 
always minors, whom he invariably 
relieves. 


§ 58. If more or less is laid 
in the Demonstratio, the plaintiff's 
right is not transformed into action 
and therefore remains intact, and 
this is the meaning of the saying 


that a right is not consumed by a 


false Demonstration. 

§ 59. Some think that less may 
be properly expressed in the De- 
monstratio, as a man who bought 
both Stichus and Eros may state 
in his Demonstratio, ‘ Whereas I 
bought of you the slave Eros,’ and 
sue for Stichus in another action, 
because the purchaser of both is the 
purchaser of each; and this was 
Labeo’s opinion. But if the pur- 
chaser of one says he purchased two, 
the Demonstratio is false; and the 
same applies to actions of Loan for 
use and Deposit. 

§ 60. I have read in some writers 
that in actions of Deposit,and where- 
ever condemnation involves infamy, 
a plaintiff has consumed his right 
to sue if his Demonstratio exceeds 
the truth, for instance, if he de- 
posited one thing and says he de- 
posited two, or if he was struck in 
the face and his Demonstratio in an 
action of assault says he was struck 
in other partsalso. Let us examine 
this question. There are two for- 
mulas of the action of Deposit, one 
of law [or right], the other of fact, 
as we said before, $ 47. The formula 
of law begins by defining the title 
or ground of action in the Demon- 
stratio, and then appeals to the law 
[or alleges a right] in these terms: 
* Whatever the defendant ought 
therefore to convey or perform.’ 
The formula of fact commences at 
once with another form of Intentio 


Ll 


514 DE ACTIONIBUS. 


OPORTET; in ea uero quae in factum 
concepta est, statim initio intentionis 
alio modo [$ 47, Comm.] res de qua 
agitur designeturhisuerbis SI PARET 
ILLVM APVD (ILLVM REM) ILLAM 
DEPOSVISSE : dubitare non debemus, 
quin si quis in formula quae in 
factum conposita est, plures res de- 
signauerit quam deposuerit, litem 
perdat, quia in intentione plus 


[1v. $$ 53-60. 


alleging the title or ground of action, 
thus: ‘If it be proved that such a 
plaintiff deposited such a thing with 
such a defendant. Certainly in the 
latter case, that is, in a formula of 
fact, if the plaintiff asserts that he 
deposited more than he really de- 
posited, he loses all, because the 
excess is in the Intentio [and he 
has consumed his right of action]. 


(24 uersus in C legi nequeunt) 
(24 wereus in C legi nequeunt) 





§ 53. Cf. Inst. Just. 4, 6, 83. When the Forum or court in 
which an action on a contract is brought happened to differ from 
the place specified in the contract as the place where a certain act 
(payment, delivery, conveyance, &c.) was to be performed, if the 
contract was such as naturally to ground a Condictio (actio stricti 
juris) in order to avoid the fault of Plus petitio, which would be 
fatal to the present claim and to any subsequent elaim on the 
same contract, it was necessary to sue, not by a Condictio which 
would be the proper form if the action were brought at the 
stipulated place of performance, but by formula Arbitraria. A de- 
fendant who lost an action was bound to make payment at the 
forum where the action was brought: ibi erit praestandum ubi 
petitur, Dig. 30, 47,1. In an actio Arbitraria the judge could 
consider the difference of place and meet the demands of equity 
by increasing or diminishing the amount which his arbitratus re- 
quired the defendant to pay in order to avoid condemnatio, If 
the contract were such as to give rise to a Bona fide actio, it 
would not be necessary to sue by formula Arbitraria in order to 
avoid Plus petitio, for the judex of an actio Ex bona fide had 
more discretion than the judex of a Condictio and by the wording 
of his commission, Ex fide bona, could allow for the difference of 
place if performance were enforced at a place different from that 
specified in the contract. 

To understand the foregoing we must consider the various tri- 
bunals before which an action can be instituted: at what forum or 
before what judge a plaintiff can sue a defendant. 

The Forum at which an action can be brought is twofold: it is 











1v.$$53-60.] COMITY OF NATIONS, FORUM, LEX, 615 


either General or Special. The General forum is the forum of the 
domicil of the defendant: actor rei forum, sive in rem sive in per- 
sonam sit actio, sequitur, Cod. 8, 19, 8. Juris ordinem converti 
postulas, ut non actor rei forum sed reus actoris sequatur, Cod, 3, 
18, 2. See8 $ 75 comm. 

The Special forum depends on the nature of the right to be 
litigated : on the department of the code to be applied. 

The special forum of a Real right is the forum where the Res 
(subject of property, servitude) is situated (forum rei Sitae). This 
was not recognized when execution related not to res but to litis 
aestimatio, Non ejusdem provinciae praesidem adeundum ubi res 
de quibus agitur sitae sunt, sed in quà is qui possidet domicilium 
habet. Frag. Vat. § 326. 

The special forum of an Obligation is generally, in Roman law, 
the forum of the place where the act is covenanted to be performed 
(forum Solutionis). In English law it is rather the forum of the 
place where the contractors entered into their contract, forum Con- 
tractus. It was when a stipulation was enforced at the general 
forum of the defendant instead of at the special forum of the 
stipulation that it was necessary to use the formula Arbitraria, 

The special forum of a Delict is the place where the delict was 
committed, 

The special forum of Insolvency coincides in Roman law with the 
general forum, i. e. is the domicil of the insolvent. 

The special forum of Succession (hereditatis petitio) is the forum 
of the locus of wrongful possession pro herede or pro possessore, 
which will coincide with the place where the subject of inheritance 
is situated (forum rei Sitae). 

Distinct from the question of the Forum that has jurisdiction 
over & right or obligation is the question of the Law that defines 
such right or obligation: what local, municipal, or national Law 
governs the relation of the plaintiff and defendant, and has to be 
administered by the Forum, whatever and wherever it may be, that 
exercises Jurisdiction. 

The question of the Forum before which a suit must be instituted, 
and of the particular Law which such Forum must administer may 
arise (1) within the limits of a single state when divided, like the 
Roman empire, into municipalities with separate jurisdictions and, 
to a certain extent, separate laws; or (2) in more or less intimate 
aggregations of provinces, cantons, states, such as we see in Switzer- 

Lla 





516 DE ACTIONIBUS. [xv. 8$ 53-60. 


land, Holland, Germany, America; or (3) between different sove- 
reign states. 

The territorial, local, or municipal law that governs a particular 
question is determined by one of four circumstances: the domicil of 
a certain person (testator, intestate, insolvent, husband, disposer, 
debtor, &c.): the place where the subject of property is situated: 
the place of performance of an act past or future (disposition, stipu- 
lated service): or the forum before which a cause is litigated. 

For Property and Obligation ex contractu the appropriate Law 
is the law of the place which supplies the special forum. 

Thus in a question of Property the law to be applied is the lex 
loci rei Sitae, E.g. in France property passes by contract, in Prussia 
by tradition. A Frenchman in France sells to another Frenchman 
his goods in Prussia. The property only passes by tradition. A 
Prussian in Prussia sells to another Prussian his goods in France. 
The property passes by the mere contract of sale. 

In a question of contract the law to be applied is primarily the 
Jex loci Solutionis. 

The Roman doctrine that Inheritance is a Universal succession 
implies that the ideal patrimony has its single seat in the do- 
micil of the heritage-leaver and is governed by the law of that 
domiei. Thus the law which governs Succession is not, after the 
analogy of the former cases, the law of the special forum of Succes- 
sion: for whereas the law which governs Succession is the law of 
the heritage-leaver’s last Domicil; we have seen that the special 
forum of Succession is the forum rei Sitae. 

But though the law of the testator’s last domicil principally 
governs his dispositions (questions relating to institution, disinherit- 
ance, preterition, inofficiositas, legacies, &c.) yet there are some 
elements of a will to which other laws must be applied. The capa- 
city of the testator (testamentifactio, commercium) must exist both 
at the date of executing the will and at the date of his decease: 
and must be tested at the former date by the law of his then 
domicil. Again the capacity of honoratus (heir or legatee) is 
governed by the law of the domicil of honoratus at the time of 
testator’s death. Indeed in Roman times, though not in modern 
Germany, this capacity was required at tria tempora, the making of 
the will, the death of the testator, and the acquisitio by honoratus, 


2 §§ 109-114 comm., and was governed at each period by the law 
of his then domicil. 











rv. § 53-60.] COMITY OF NATIONS, FORUM, LEX. 517 


The Capacity of a person for contracting and otherwise disposing 
is governed by the law of his domicil: with this reservation, that 
Majority once attained is regarded as a vested right which cannot 
be divested by a mere change of domicil: by settling, that is to 
say, in & new domicil where majority comes later. 

The validity of the Form of any disposition (contract, marriage, 
testament, &c.) depends on the law by which the substance of the 
disposition is governed (the law of the stipulated place of perform- 
ance, the law of the husband's domicil, the law of the testator’s 
domicil at the time of making his will) But inconveniences would 
arise if this law were exclusive. For instance, a Prussian will 
can only be made with the assistance of a court. In France no 
court is authorized to give its assistance to the execution of a will, 
which is the function of the Notary. A Prussian, then, domiciled 
in Prussia but dying in France, would be unable to execute a will 
if he could only do it in the form prescribed by Prussian law. 
Accordingly, as an alternative to the law that governs the disposi- 
tion, the law of the place where the disposition is made is accepted : 
and the form of a disposition is valid if it satisfies either the proper 
law of the disposition or the law of the territory in which the dis- 
position is made. The applicability of the latter law is expressed 
by the maxim: Locus regit actum. We must except the forms of 
Alienation which must always satisfy the lex rei Sitae. 

Procedure is governed by the law of the forum where a suit is 
instituted. Dilatory exceptions, accordingly, as based merely on 
rules of procedure, depend on the law of the forum. But the 
material contentions of the defence, that is, the rights of the de- 
fendant, whether ipeo jure extinctive, or per exceptionem peremp- 
toriam counteractive, of the rights of the plaintiff, are governed by 
the same law as the rights of the plaintiff; that is by the local law 
that governs the obligation. The Exceptio Sc. Macedoniani and Sc. 
Velleiani, however, as relating to personal Capacity, are governed 
by the law of the domicil of the person in question. 

Procedure in Bankruptcy being a partial or imperfect Execution, 
ite leading feature, the Classification or marshalling of creditors, 
like other matters of Procedure, is governed by the law of the Forum 
by which the execution is superintended, which in this case will be 
the law of the domicil of the Insolvent. The priorities of the 
purely personal creditors, that is to say, will be governed by the 
law of the forum: but where there are hypothecary creditors who 


518 DE ACTIONIBUS. [rv. $$ 53-60. 


hold mortgages over property of the insolvent in other lands, their 
priorities involving a question of Real rights will depend on the lex 
rei Sitae. The preliminary Proof by the creditors of their particular 
^ claims will be governed by the law (law of the stipulated place of 
performance, &c.) which according to general rules is applicable to 
the obligations they respectively seek to enforce. 

Exceptions to most of the preceding rules are produced by the 
existence of Imperious and Anomalous laws: laws based on reli- 
gious, moral, political, financial, administrative, instead of purely 
civil, motives: such as laws relating to heresy, usury, gambling, 
revenue, mortmain; or laws implying institutions (e.g. slavery, 
civil death) unrecognised by other states. Each forum enforces its 
own Imperious or Anomalous laws, and disregards those of its 
neighbour. For instance a monogamist forum will not enforce 
polygamistic laws, nor will any forum enforce the penal laws which 
a neighbour levels against its coreligionists. 

Obligation founded on Delict is always the subject of such Im- 
perious laws: accordingly civil obligation ex delicto, unlike obliga- 
tion ex contractu, is governed by the laws of the forum by which it 
is remedied. 

The rules of which the above are a specimen constitute what 
is called the Comity of nations or Private international law. 
The ideal aim of the Comity of nations is: that the judgment 
passed on any controversy should be identical whatever may be 
the tribunal that happens to exercise jurisdiction. Savigny, System, 
vol. 8. 

The penalty of pluris petitio in respect of time was reduced 
by Zeno, who merely doubled the term that was still to ran before 
payment, and required the creditor to pay the costs of the former 
action before he brought a second, Cod. 3, 10, 1. The effect of 
this was to change the meaning of the term *dilatoria which, 
as applied to an exceptio and opposed to peremptoria, denoted an 
exceptio alleging pluris petitio in Time. 

When Gaius wrote, such an exception, if successfully alleged, 
was just as fatal to the creditor as an exceptio peremptoria. It was 
temporary, not in respect of its effects, but of the limited period 
during which it was at the command of the debtor. But after Zeno 
such an exceptio was temporary in its effects, and did not prevent 
a renewal of the action after a certain lapse of time, that is, after 
the expiration of the term originally fixed for the payment, and an 





rv. §§ 53-60.] COMITY OF NATIONS, FORUM, LEX. 519 


additional term measuring the temporal excess of the plaintiff’s 
claim. Justinian retained Zeno’s law in respect of Time, and 
disarmed the other modes of pluris petitio of their terrors, by 
merely making the creditor liable to three times the amount of 
the loss that his exorbitant claim had caused to the debtor, par- 
ticularly in respect of the fees (sportulae) of the executive officers 
(executores), Cod. 3, 10, 2. 

$ 55. A plaintiff who had made & mistake in the subject of his 
claim was allowed by Justinian to amend his claim without insti- 
tuting a new action. 

It seems from this paragraph that the title or ground of action 
(causa debendi) e.g. testamentum, stipulatio, was sometimes specified 
in the Intentio. Perhaps this was done in Condictio certi, which 
had no Demonstratio, and then availed to prevent the consumption 
of the right of action; that is, the allegation of the plea of Res 
judicata when the plaintiff afterwards claimed the same sum but 
founded his claim on a different title. Cf. § 181. 

$ 56. A plaintiff whose intentio claimed less than he was entitled 
to was allowed by Zeno to obtain the full amount without institut- 
ing a new action, Inst. 4, 6, 34. | 

$ 58. As pluris petitio implies intentio certa, and the existence 
of a demonstratio involves intentio incerta, it follows that excess 
in the demonstratio cannot involve pluris petitio. Again, as the 
demonstratio determines what is the res in judicium deducta, a 
falsa demonstratio cannot consume the true ground of action. 

$ 60. It appears that some jurist had regarded the first clause of 
an actio in faetum, si paret . . . fecisse, as a demonstratio. Gaius 
himself, in speaking of this clause used ambiguous terms, nominato 
eo quod factum est, $ 46. But it is clear from § 60 that he holds 
it to be no Demonstratio, but an Intentio. 

The plaintiff who lost an actio in factum did not strictly speaking 
lose his right to bring another action, for novatio, or transformation 
of his original right into a right to have judgment, was only 
operated by the commencement of a personal action in jus. But 
this made no practical difference, for though his own right (ipsum 
jus) was not extinguished, it was counterpoised by an opposite nght 
of the defendant based on the result of the trial (exceptio rei judi- 
catae), which would cause any suit instituted by the plaintiff to be 


520 


COMPENBATIO 


$ 61. (In bone fidei autem judi- 
cits libera potestas permitti. videtur 
judici ex bono et equo estimandi, 
quantum actori vestitus debeat, in 
quo et illud) continetur, ut habita 
ratione eius quod inuicem actorem 
ex eadem causa praestare oporteret, 
in reliquum eum cum quo actum 
est, condemnare. 

$62. Sunt autem bonae fidei 
iudicia haec: ex empto uendito, 
locato conducto, negotiorum ges- 
torum, mandati, depositi, fiduciae, 
pro &ocio, tutelae, rei uxoriae, (com- 
modati, pigneraticium, — familiae 
erciscundae, communi diuidundo, 

$ 63. Liberum est tamen iudici 
nullam omnino inuicem conpensa- 
tionis rationem habere; nec enim 
aperte formulae uerbis praecipitur, 
sed quia id bonae fidei iudicio con- 
ueniens uidetur, ideo officio eius 
contineri creditur. 


$64. Alia causa est illius actionis 
qua argentarius experitur: nam is 
cogitur cum conpensatione agere, et 
ea conpensatio uerbis formulae ex- 
primitur ; adeo quidem, ut ab initio 
conpensatione facta minus intendat 
sibi dart oportere. ecce enim si 
sestertiwm X milia debeat Titio, at- 
que ei Xx debeantur, sic intendit 
SI PARET TITIVM SIBI X MILIA DARE 
OPORTERE AMPLIVS QVAM LPSE TITIO 
DEBET. 


$ 65. Item bonorum emptor cum 
deductione agere iubetur, id est et 
in hoc solum aduersarius eius con- 
demnetur quod superest, deducto eo 
quod inuicem ei bonorum emptor 
defraudatoris nomine debet. 


DE ACTIONIBUS. 


[rv. § 61—68. 


ET DEDUCTIO. 


$61. (Inst. 4, 6, 30. In equitable 
actions the judex has full power to 
assess on good and equal grounds 
the amount due to the plaintiff) 
and can take into account the cross 
demand in the s&me transaction of 
the defendant, and condemn the de- 
fendant in the remainder. 


$ 62. Equitable actions are those 
of Purchase and Sale, Letting and 
Hiring, Voluntary work, Agency, 
Deposit, Trust, Partnership, Guar- 
dianship, dower, Hoan of use, Mort- 
gage, Partition of inheritance, Dis- 
solution of joint ownership, Name- 
less contract |. 

$63. The judex may, if he 
pleases, refuse to take compensation 
into account, since be is not ex- 
pressly instructed by the terms of 
the formula to make compensation, 
but as it seems fit and proper in an 
equitable action, the power is as- 
sumed to be contained in his com- 
mission. 

§ 64. It is otherwise in the action 
instituted by a banker for the bal- 
ance of an account, for the banker 
is compelled to make express recog- 
nition of compensation in his formu- 
là, and accordingly allows for any 
credit-items from the first, and in 
his Intentio only claims the balance. 
If he owes ten thousand sesterces to 
Titius and Titius owes him twenty 
thousand, his Intentio runs as fol- 
lows: ‘If it be proved that Titius 
owes him ten thousand sesterces 
more than he owes Titius. 

§ 65. Likewise the purchaser of 
a bankrupt’s estate must notice any 
cross demand in his formula, and in 
the condemnatio only require the 
insolvent’s debtor to pay what he 
owes after deduction of what is due 
to him from the purchaser as the 
insolvent's successor. 


1v. $$ 61-68.] 


§ 66. Inter conpensationem au- 
tem quae argentario opponitur, et 
deductionem quae obicitur bonorum 
emptori, illa differentia est, quod in 
conpensationem hoc solum uocatur 
quod eiusdem generis et naturae 
est: ueluti pecunia cum pecunia 
conpensatur, triticum cum tritico, 
uinum cum uino; adeo ut quibus- 
dam placeat non omni modo uinum 
cum uino aut triticum cum tritico 
conpensandum, sed ita si eiusdem 
naturae qualitatisque sit. in de- 
ductionem autem uocatur et quod 
non est eiusdem generis. itaque 
(st ); sl uero pecuniam petat 
bonorum emptor et inuicem fru- 
mentum aut uinum is debeat, de- 
ducto quanti id erit, in reliquum 
experitur. 





$ 67. Item uocatur in deductio- 
nem et id quod in diem debetur; 
conpensatur autem hoc solum quod 
praesenti die dedetur. 

$ 68. Praeterea conpensationis 
quidem ratio in intentione ponitdr ; 
quo fit, ut si facta conpensatione 
plus nummo uno intendat argen- 
tarius, causa cadat et ob id remi 
perdat. deductio uero ad condem- 
nationem ponitur, quo loco plus 
petenti periculum non interuenit ; 
utique bonorum emptore agente, 
qui licet de certa pecunia agat, in- 
certi tamen condemnationem conci- 
pit. 


COMPENSATIO ET DEDUCTIO. 


521 


$ 66. Between the compensation 
which is made against the claim of 
the banker and the deduction from 
the claim of the execution purchaser 
there is this difference, that com- 
pensation is confined to claims of 
the same genus and nature ; money, 
for instance, is set off against money, 
wheat against wheat, or wine against 
wine; and some even hold that not 
every kind of wine or every kind of 
wheat may be set off against wine 
and wheat, but only wine and wheat 
of the same nature and quality. 
Deduction, on the contrary, is made 
of a debt of a different genus. Thus, 
if an execution purchaser sues for 
money owed tothe insolvent a person 
to whom he himself as the insolvent's 
successor owes corn or wine, he de- 
ducts the value of the corn or wine 
and brings the action only for the 
residue. 

$ 67. Again, deduction is made 
of debts not yet due, compensation 
only of debts already due. 


$ 68. Again, compensation is in- 
gerted in the Intentio, and if the In- 
tentio of the banker is one sesterce 
more than the balance, he loses his 
present cause and his future claim; 
whereas the deduction is introduced 
in the Condemnatio, where an ex- 
cessive claim is not hazardous; es- 
pecially as the execution purchaser, 
though the debt he claims is cer- 
tain, sues for an uncertain sum in 
the Condemnatio. 


§ 61. Compensation was originally limited to claims growing 


out of the same ground (ex eadem causa, § 61); growing out of a 
transaction, that is, that generated either a bilateral obligation 
and gave to both parties an actio directa, or a semi-bilateral ob- 
ligation, giving to one party actio directa and to the other actio 
eontraria. In other words Compensatio was confined to actions 
ex bona fide. The emperor Marcus Aurelius made the identity of 
title (eadem causa) unnecessary: he allowed Compensatio to be 





522 DE ACTIONIBUS. [rv. $$ 61-68. 


urged against claims based on transactions that could only 
generate unilateral obligations: in other words, he admitted Com- 
pensatio in Condictiones or stricti juris actiones. (It was merely 
by inadvertence that Justinian in compiling his own Institutions 
out of those of Gaius retained the words ex eadem causa in the 
definition of Compensation, Inst. 4, 6, 39. Savigny § 45.) 

In an actio bonae fidei Compensation of the defendant's counter- 
claim ex eadem causa would not require to be commanded by an 
express exceptio, but would be included in the offictum judicis; 
ie. would be made by the judex in virtue of the terms EX BONA 
FIDE contained in the formula which gave him his commission. 
In an actio strieti juris the judex was empowered to make com- 
pensation by the Exceptio Doli mali: Sed et in strictis judiciis 
ex rescripto divi Marci, opposita doli mali exceptione, compensatio 
inducebatur, Inst. 4, 6, 30. The same exceptio was doubtless ne- 
cessary even in an action ex bona fide when the counterclaim 
arose from an independent transaction (ex alia causa) In emptio- 
venditio the exceptio non-adimpleti contractus puts forward a 
counterclaim founded on the same transaction, Vangerow § 607. 

The exception was of the form: Si in ea re nihil dolo malo Auli 
Agerii factum sit neque fiat, § 119: and we find in the Digest a 
definition of Dolus that seems intended to apply to a claim for Com- 
pensation : Dolo facit qui petit quod"redditurus est, Dig. 44, 4, 8. 

Some writers hold that this exceptio empowered the judex, not 
to make compensation but to give judgment against the plaintiff 
on the ground of Plus petitio; and they explain that this was not. 
so iniquitous as at first sight it may appear, as the loss of the action 
would only be a penalty to the plaintiff for refusing to employ a 
formula containing a Compensatio or Deductio, the usage of these 
formulae being in effect generalized by the rescript of Marcus 
Aurelius. 

Vangerow, on the other hand, observes that we have no evi- 
dence that an intentio modified by a Compensatio or Deductio was 
ever employed by any plaintiff but the Argentarius and Bonorum 
emptor: while we are expressly informed by Theophilus 4, 6, 30, 
that the effect of Exceptio doli was to diminish the condemnatio; 
which again is consistent with what is said of the general nature of 
exceptio: Exceptio est conditio quae modo eximit reum condem- 
nationi, modo minuit damnationem, Dig. 44, 1, 22. 

As Gaius flourished under Marcus Aurelius, and makes no men- 











rv. §§69-74a.] ACT. ADJECTITIAE QUALITATIS. 523 


tion of his rescript, we must infer that it either was issued after 
the publication of these Institutions, or was mentioned in the pre- 
ceding paragraphs where the manuscript is now defective. 

Justinian extended Compensation to Real actions, Cod. 4, 81, 14. 

$ 66. The balance for which the banker sued was not the balance 
of a Personal account, but the balance of one of the Real accounts 
for corn, wine, oil, &c., into which the debtor’s total personal account 
was subdivided. The law courts, that is, took notice of the cus- 
tomary practice of the book-keepers, and a question naturally arose 
as to the extent to which a personal account could be subdivided. 

§ 68. It was the duty of the Argentarius to keep the accounts of 
his customers: whereas the Bonorum emptor might well be ignorant 
of the transactions of the msolvent. This explains the greater 
rigour with which the Argentarius was treated. 

A defendant was allowed to deduct his cross demand or inde- 
pendent debt from the demand of the plaintiff by the English 
courts of Equity, but not by the courts of Common law, until the 
Statutes 2 Geo. II, c. 22; 8 Geo. II, c. 24, introduced the plea of 
set-off into the courts of Common law. 


DE ACTIONIBUS EX CONTRACTU FILIORUM ET SERVORUM. 





$ 69. Quia tamen superius men- 
tionem habuimus de actione qua 
in peculium filiorum familias ser- 
uorumque agitur, opus est ut de 
hac actione et de ceteris quae eorun- 
dem nowine in parentes dominosue 
dari solent, diligentius admoneamus. 

$ 70. Inprimis itaque si iussu 
patris dominiue negotium gestum 
erit, in solidum praetor actionem in 
patrem dominumue conparauit; et 
recte, quia qui ita negotium gerit, 
magis patris dominiue quam filii 
seruiue fidem sequitur. 


$ 71. Eadem ratione conparauit 
duas alias actiones, exercitoriam et 
instiforiam. tunc autem exercitoria 
locum habet, cum pater dominusue 
filium seruumue magistrum naut 
praeposuerit, et quid cum eo eius 
rei gratia cui praepositus fuerit, 


$69. Às we have mentioned 
[cf. Inst. 4, 6, 36. 4, 7, pr.] the 
action in respect of Peculium, we 
must explain this action and the 
others by which fathers and masters 
are sued for the debts of their sons 
or slaves. 

§ 70. Firstly, if it was at the 
bidding of the father or master that 
the plaintiff contracted with the son 
or slave, the father or master may 
be sued for the whole amount, for 
then the contract was made in 
reliance on the credit of the father 
or master rather than of the son or 
slave. 

§ 71. On the same principle the 
praetor grants two other actions, 
one to recover the debt of a ship- 
captain, the other to recover the 
debt of a manager or factor. The 
actio exercitoria lies against a father 
or master who has appointed a son 


524 


[negotium] gestum erit. cum enim 
ea quoque res ex uoluntate patris 
dominiue contrahi uideatur, aequis- 
simum esse uisum est in solidum 
actionem (in ewm) dari. quin etiam, 
licet extraneum quisque magistrum 
naui praeposuerit siue seruum siue 
liberum, tamen ea praetoria actio 
in eum redditur. ideo autem exer- 
citoria actio appellatur, quia exerci- 
tor uocatur is ad quem cottidianus 
nauis quaestus peruenit. institoria 
nero formula tum locum habet, cum 
quis tabernae aut cuilibet negotia- 
tioni filium seruumue aut quemlibet 
extraneum siue seruum siue liberum 
praeposuerit, et quid cum eo eius 
rei gratia cui praepositus est, con- 
tractum fuerit. ideo autem insti- 
toria uocatur, quia qui tabernae 
praeponitur, institor appellatur. 
quae et ipsa formula in solidum est. 

$72. Praeterea tributoria quoque 
actio in patrem dominumue con- 
stituta est, cum filius seruusue in 
peculiar merce sciente patre do- 
minoue negotietur. nam si quid 
eius rei gratia cum eo contractum 
fuerit, ita praetor ius dicit, ut quid- 
quid in Ats mercibus erit quodque 
inde receptum erit, id inter ( patrem) 
dominum(ue), si quid ei debelitur, 
et celeros creditores pro rata portione 
distribuatur. Et quia ipsi patri do- 
minove distributionem permittit, st 
quis ex creditoribus queratur, quasi 
minus ei tributum sit quam opor- 
tuerit, hance ei actionem adcom- 
modat, quae tributoria appellatur. 

$ 72a. Praeterea introducta est 
actto de peculio deque eo quod in rem 
patrisdominive versum erit, ut quam- 
vis sine voluntate patris dominive 
negotium gestum erit, tamen sive quid 
tn rem eius versum fuerit, td totum 
praestare debeat, sive quid non sit 
in rem eius versum, id eatenus 
praestare debeat, quatenus peculium 
patitur. In rem autem patris do- 
minive versum intellegitur quidquid 


DE ACTIONIBUS. 


[1v. $$ 69—74 a. 


or slave to be captain of a ship, to 
recover a debt incurred by the son 
or slave in his character of captain. 
As such a contract is made with 
the consent of the father or master 
he is justly liable for the whole. So 
if a man appoint another person's 
slave or a freeman to be captain, 
he may be sued by the praetorian 
action. The action is called Exer- 
citoria because exercitor signifies 
a person who takes the daily 
profits of a ship. The actio In- 
stitoria lies against a man who 
appoints his son or slave or another 
person's slave or a freeman to man- 
age a shop or any business, to re- 
cover any debt incurred in that 
business. It is called Institoria 
because the manager of a shop is 
called Institor, and it is brought for 
the whole amount. 

§ 72. The edict provides another 
action, called Tributoria, in respect 
of the part of the Peculium which 
is devoted to a certain trade carried 
on by a son or slave with the know- 
ledge of his father or master. If 
any debts are contracted in that 
trade the praetor orders this portion 
of the Peculium and its profits to 
be distributed between the father or 
master and other creditors in pro- 
portion to their claims, and charges 
the father or master with the dis- 
tribution, and any creditor who 
complains that he has received leas 
than his share can bring this action. 


$ 72a. There isalso an action in 
respect of Peculium and of what has 
been converted to the uses of the 
father or master. When a debt is 
contracted without the consent of 
the father or master, if any portion 
was converted to his uses, he is 
liable to that amount; if no ion 
was converted, he is liable to the 
extent of the peculium. Conversion 
to his uses is any necessary expen- 


rv. §§ 69-744] ACT. ADJECTITIAE QUALITATIS. 


necessario tn rem eius impenderit 
Jülius servusve, veluti st mutuatus 
pecuniam creditoribus evus solverit, 
aut aedificia ruentia fulserit, aut 
familiae frumentum emerit, vel etiam 
fundum aut quamlibet aliam rem 
necessariam, mercatus erit. itaque 
st ex decem ut puta sestertiis quae 
servus (uus a Titio mutua accent 
creditort tuo quinque sestertia sol- 
verit, reliqua vero quinque quolibet 
modo consumpserit, pro quinque 
quidem in. solidum damnari debes, 
pro ceteris vero quinque eatenus, 
quatenus tn peculio sit: ex quo 
scilicet apparet, si tota decem sester- 
tia in rem tuam versa fuerint, tota 
decem sestertia — Titium — consequi 
posse. licet enim una est actio qua 
de peculio deque eo quod in rem 
pairis dominive versum sit agitur, 
tamen duas habet. condemnationes. 
Waque tudex aput quem ea actione 
agitur ante dispicere solet, an in 
rem patris dominive versum sit, neo 
aliter ad peculii aestimationem tran- 
sit, quam 8 aut nihil in rem patris 
dominive versum intellegatur, aut 
non totum. (Cf. Inst. 4, 7, 4.) 

$73. Cum autem quaeritur, quan- 
tum in peculio sit, ante deducitur 
quod patri dominoue quique in eius 
potestate sit, a filio seruoue debetwr, 
et quod superest, hoc solum pecu- 
hum esse intellegitur. aliquando 
tamen id quod ei debet filius seruus- 
ue qui in potestate patris dominiue 
sit, non deducitur ex peculio, uelut 
siis cui debet, in huius ipsius pe- 
culio ait. 

$ 74. Ceterum dubium non est, 
quin et is qui iussu patris dominiue 
contraxit cuique exercitoria uel in- 
Btitoria formula conpetit, de peculio 
aut de in rem uerso agere possit. 
sed nemo tam stultus erit, ut qui 
aliqua illarum actionum sine dubio 
solidum consequi possit, in difficul- 
tatem se deducat probandi habere 
peculium eum cum quo contraxerit, 


525 


diture on his account, as payment 
of his creditors, repair of his falling 
house, purchase of corn for his 
slaves, purchase of an estate for him, 
or any other necessary. If out of 
ten thousand sesterces which your 
slave borrowed of Titius he paid 
your creditor five thousand, and 
spent the remainder in some other 
way, you are liable for the whole 
of the five thousand, and for the 
remainder to the extent of the pe- 
culium. Ifthe whole ten thousand 
was applied to your uses you are 
liable for the whole. It is a single 
action that is brought in respect of 
Peculium and of conversion to uses, 
but it has two condemnatory clauses. 
The judex first looks to see whether 
there has been an application to the 
uses of the father or master, and 
does not proceed to ascertain the 
amount of the peculium unless there 
was no such application or only a 
partial application. 


§ 73. In ascertaining the amount 
of the peculium, deduction first is 
made of what is owed to the father 
or master or to a person in his 
power, and the residue only is 
treated as peculium. Sometimes 
what is owed to a person in his 
power is not deducted, for instance, 
if it is owed to a vicarius, that is, 
to a slave in the peculium of the 
slave. 

§ 74. There 1s no doubt that a 
creditor who contracted with the 
sanction of the father or master 
with a son or slave, and one who 
might sue by exercitoria or insti- 
toria, may bring an action in respect 
of the peculium or of conversion 
to uses; but it would be foolish to 
relinquish the actions by wbich he 
can recover the whole, and under- 





526 


exque eo peculio posse sibi satisfieri, 
uel id quod persequitur, in rem 
patris dominiue uersum esse. 


$ 74a. Js quoque cui tributoria 
actio conpetit, de peculio uel de in 
rem uerso agere potest. sed huic 
sane plerumque expedit hac potius 
actione uti quam tributoria. nam 
in tributoria eius solius peculii ratio 
habetur, quod in his mercibus est 
quibus negotiatur filius seruusue 
quodque inde receptum erit; at in 
actione peculi, totius, et potest 
quisque tertia forte aut quarta uel 
etiam minore parte peculii nego- 
tiari, maximam uero partem peculii 
in aliis rebus habere; longe magis 
si potest adprobari, id quod (dederit 
is qui cum filio seruoue) contraxit, 
in rem patris dominiue uersum esse, 
ad hane actionem transire debet; 
nam, ut supra diximus, eadem for- 
mula et de peculio et de in rem 
uerso agitur. 


DE ACTIONIBUS. 


[1v. $$ 69-74 a. 


take the trouble of proving a con- 
version to uses or the existence of 
& peculium sufficient in amount to 
cover the whole of the debt. 

$ 74a. A plaintiff who can sue 
by Tributoria may sue in respect of 
peculium and conversion to uses, 
and will generally find it expedient 
to do so; for Tributoria only re- 
lates to that portion of the peculium 
which consists of the merchandise 
and the proceeds of the merchandise 
with which the son or slave traded, 
but the others extend to the whole 
peculium; and a man may trade 
with only a third or fourth or less 
part of his peculium and have the 
rest invested in other concerns. A 
fortiori, if the plaintiff can prove 
that the whole of the debt was con- 
verted to the uses of the father or 
master, he should use this action 
instead of Tributoria ; for, as I said 
above, the same formula lies both 
in respect of peculium and of what 
has been converted to uses. 


§ 71. The term Institor includes a banker (mensae praepositus), 


bailiff (agris colendis), foreman (mercaturis), bagman (sed etiam eos 
institores dicendos placuit, quibus vestiarii vel lintearii dant vestem 
circumferendam et distrahendam, quos vulgo circitores appellamus, 
Dig. 14, 8, 5), and any similar agent, of whatever age or sex (nam 
et plerique pueros puellasque tabernis praeponunt, Dig. 14, 8, 8). 
The relation of the free captain (magister) to the shipowner 
(exercitor) and of the free manager, overseer, factor (institor) to 
his employer (dominus), was the germ or first manifestation of the 
general institution of Agency (mandatum), an institution that was 
slow in reaching its complete development in Roman jurisprudence. 
Actio adjectitia was so called because of the Adjectio or additional 
clause which was introduced in the formula of an action brought 
against a superior (father, owner, or principal) for an obligation 
incurred by an inferior (son, slave, or agent). By the civil law the 
inferior could not bind the superior, i.e. deteriorate his condition 
even with the consent of the superior, Savigny, $ 113. But the 
Praetor besides the actio directa (empti, locati, &c.) which lay 


rv. §§ 69-74.a.] ACT. ADJECTITIAE QUALITATIS. 527 


against the inferior, granted similar actions with a modified formula 
(actio empti de peculio, &c.) against the superior. They are six in 
number: Quod jussu, Exercitoria, Institoria, De peculio, De in rem 
verso, Tributoria. In the formula for De peculio, and De in rem 
verso (one formula with a double condemnatio), the adjectio was 
annexed to the condemnatio. Keller, Litis Contestatio, § 50, sup- 
poses that the following may have been its simplest form: Maevius 
judex esto, Quod Titius Seio filiofamilias mensam argenteam com- 
modavit, qua de re agitur, quicquid ob eam rem Seium Titio dare 
facere oportet ex fide bona ejus, id [but see § 47 comm.] judex 
Gaium patrem duntaxat De peculio aut Quod in rem Gaii patris 
versum est, condemnato. In Quod jussu, Exercitoria, and Institoria, 
the Adjectio was apparently a part of the demonstratio. Keller sug- 
gests the following formula: Quod jussu Gaii patris Seius filius- 
familias a Titio hominem emit, quicquid ob eam rem Seium Titio 
dare facere oportet, id [see $ 47 comm.] Gaium patrem condemna. 
In all of them the inferior alone was mentioned in the intentio, 
§ 34 comm. We have not sufficient data for determining the nature 
of the formula in Tributoria, The knowledge of the father, the in- 
adequate distribution, the limitation of liability to the merx peculiaris, 
would seem to require an Adjectio to all three parts of the formula, 

By the identity of the actions De peculio and De in rem verso, the 
superior could be successively sued in two characters. If the actions 
had been distinct, then, as their intentio must have been identical, 
Litis Consumptio would have hindered their successive institution. 

The inferior and superior were Correales, 3 $ 110 comm., and 
against whichever an action was brought, the intentio averred the 
debt of the inferior, so that on Litis Contestatio against either, the 
other was discharged by Res in judicium deducta. To remedy this 
injustice Justinian enacted that Correales were only discharged by 
Solutio. 

Besides the equitable actions introduced by the praetor, a pater- 
familias was rendered liable by the act of his son or slave to a 
condietio, that is, was liable under the civil law to an action stricti 
juris in two cases (which we must probably limit with Savigny 
by the hypothesis of a Money loan) if the act turned to bis profit 
(si in rem ejus versum est), and if it had received his sanction, for 
& contract entered into by his order was regarded as his contract. 
The liability of the superior follows from the explanation that has 
been given of the gist of Condictio, 


528 


DE ACTIONIBUS. 


[1v. $$ 75-81. 


DE NOXALIBUS ACTIONIBUS. 


$75. Ex maleficizs filiorum fami- 
lias seruorumque, ueluti si furtum 
fecerint aut iniuriam commiserint, 
noxales actiones proditae sunt, uti 
liceret patri dominoue aut litis 
aestimationem sufferre aut noxae 
dedere. erat enim iniquum nequi- 
tiam eorum ultra ipsorum corpora 
parentibus dominisue damnosam 
esse. 


§ 76. Constitutae sunt autem 
noxales actiones aut legibus aut 
edicto praetoris: legibus, uelut furti 
lege Xi! tabularum, damni iniuriae 
lege Aquilia ; edicto praetoris, uelut 
iniuriarum et ui bonorum raptorum. 


$ 77. Omnes autem noxales ac- 
tiones caput secuntur. nam sifilius 
tuus seruusue noxam commiserit, 
quamdiu in tua potestate est, tecum 
est actio; si in alterius potestatem 
peruenerit, cum illo incipit actio 
esse; si sul iuris coeperit esse, di- 
recta actio cum ipso est, et noxae 
deditio extinguitur. ex diuerso quo- 
que directa actio noxalis esse tnci- 
pit. nam si pater familias noxam 
commiserit, et is se in adrogationem 
tibi dederit aut seruus tuus esse 
coeperit, (quod) quibusdam casibus 
accidere primo commentario tradi- 
dimus, incipit tecum noxalis actio 
esse quae ante directa fuit. 


$ 78. Sed si filius patri aut 
seruus domino noxam commiserit, 
nulla actio nascitur; nulla enim 
omnino inter me et eum qui in po- 


$ 75. For a delict, such as theft 
or outrage, committed by a son or 
slave, a noxa] action lies against the 
father or master, who has the op- 
tion of either paying the damages 
assessed or surrendering the delin- 
quent. For it is not just that the 
misdeed of a son or slave should 
involve the father or master in any 
detriment beyond the loss of his 
body. 

§ 76. Noxal actions were intro- 
duced partly by law, partly by the 
edict of the praetor: for theft, by 
the law of the Twelve Tables; for 
injury to property, by the lex 
Aquilia; for outrage and rapine, 
by the edict. 

§ 77. Noxal actions lie against 
the person who is lord or chief of 
the malefactor at the time when 
they are brought, although he was 
not so at the time of the commission 
of the injury. If your son or slave 
has done & wrong while he is in 
your power, an action lies against 
you; if he falls under the potestas, 
patria ordominica, of another person, 
an action lies against his new su- 
perior: if he becomes hisown master, 
a direct action lies against the of- 
fender himself (as his own lord), and 
the noxal action is extinguished. 
Conversely, a direct action may 
change into noxal: if a pater- 
familias has done a wrong, and 
has become your son by adrogatio 
or your slave, as I showed in the 
first book might happen in certain 
circumstances, a noxal action lies 
against you in place of the direct 
action which formerly lay against 
the wrong-doer. 

§ 78. But no action lies for an 
offence by a son or slave committed 
against his father or master; for 
between me and a person in my 








1v. $$ 75-81.] 


testate mea est, obligatio nasci 
potest. ideoque etsi in alienam 
potestatem peruenerit aut sui iuris 
esse coeperit, neque cum ipso neque 
cum eo cuius nunc in potestate est, 
agi potest. unde quaeritur,si alienus 
seruus filiusue noxam commiserit 
mihi, et is postea in mea esse coe- 
perit potestate, utrum intercidat 
aclio an quiescat. nostri praecep- 
tures intercidere putant, quia in 
eum casum deducta sit, in quo con- 
sistere non potuerit, ideoque, licet 
exierit de mea potestate, agere me 
non posse; diuersae scholae auc- 
tores, quamdiu in mea potestate sit, 
quiescere actionem putant, quia ipse 
mecum agere non possum, cum uero 
exierit de mea potestate tunc eam 
resuscitari. 


$ 79. Cum autem filius familias 
ex noxali causa mancipio datur, 
diuersse scholae auctores putant 
ter eum mancipio dari debere, quia 
lege Xil tabularum cautum sit, (ne 
aliter fius de potestate patris) ex- 
eat, quam si ter fuerit mancipatus ; 
Sabinus et Cassius ceterique nos- 
trae scholae auctores sufficere unam 
mancipationem crediderunt, et illas 
tres legis Xii tabularum ad uolun- 
tarias mancipationes pertinere. 


$ 80. Haec ita de his personis 
quae in potestate (sunt), siue ex 
contra|ctu siue ex maleficio earum 
—. quod uero ad eas | personas 
quae in manu mancipioue sunt, ita 
ius dicitur, ut cum ex contractu 
earum agatur, nisi ab eo cuius iuri 
subiectae sint, in solidum defen- 
dantur, bona quae earum futura 
forent, si etus iurt subiectae non 
essent, ueneant. sed cum rescissa 
capitis deminutione cum iis imperio 


DE NOXALIBUS ACTIONIBUS. 


529 


power there is no obligation; and, 
consequently, if he passes under the 
power of another, or becomes his 
own master, neither he nor his 
master can be sued. Hence it 
has been asked whether, if another 
man's son or slave has wronged 
me and passes into my power, the 
action is extinguished, or is only 
in abeyance. Our school maintairs 
that it is extinguished, because it 
has come into a condition in which 
an action cannot exist, and there- 
fore if he pass again out of my 
power I have no action. The other 
school maintain that while he is 
in my power the action is only 
in abeyance, because I cannot bring 
an action against myself, and re- 
vives when he passes out of my 
power. 

§ 79. When a filiusfamilias is 
surrendered by mancipation in 
satisfaction of judgment in a 
noxal action, the other school 
hold that he ought to be manci- 
pated three times, because the law 
of the Twelve Tables provides that 
a son cannot pass out of the power 
of the father unless he is three 
times mancipated. Sabinus and 
Cassius and the other authorities 
of my school hold that a single 
mancipation is sufficient, and sup- 
pose that the three conveyances of 
the Twelve Tables are only required 
in voluntary emancipation. 

§ 80. So much for the contracts 
and delicts of persons under power. 
As to persons subject to manus or 
mancipium, when they are sued for 
contracts, unless they are defended 
against the whole damages by the 
superior to whom they are subject, 
the goods which would have be- 
longed to them but for their sub- 
jection are ordered by the praetor 
to be sold. An action rescinding 
the change of status and deriving 


Mm 





530 





continent iudicto agitur, 
(13 wersus in C legi nequeunt) 

Xil tabularum 

——| (7 uersus tn C legi nequeunt) 








$81. Quid ergo est 1 — diximus 
—non permissum fuerit ei mortuos 
homines dedere, tamen etsi quis eum 
dederit qui fato suo uita excesserit, 
aeque liberatur. 


DE ACTIONIBUS. 


[rv. $$ 75-81; 


its binding force from the praetor'a 
executive supremacy... 


$ 81. Bat though I said that the 
surrender of & dead man was not 
allowed yet if he died a natural 
death and the body is surrendered, 
the judgment is satisfied. 


§ 77. Gaius explained the various modes by which a man might 
lose his freedom, 1 § 160. A person who fraudulently allowed him- 
self to be sold with the view of sharing the purchase money, Inst. 
1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman 
who persisted in intercourse with a slave without the permission of 
the master, all forfeited their freedom, the last by a Senatuscon- 
sultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1. 
In the older law a man who failed to register himself at the 
census (incensus) lost his freedom; and by the Twelve Tables 
the fur manifestus and insolvent debtor were assigned (addicti) to 
the injured party, though, apparently, 3 § 189, not reduced to slavery. 

§ 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6, 
that the action for the delict of a slave is extinguished, without 
possibility of future revival, when the delinquent slave comes into 
the power of the person aggrieved. 

§ 81. The death of a delinquent slave extinguished the liability 
of the master. 

As the Romans became more civilized the noxal surrender of a 
son or daughter by the parent became repugnant to public feelings, 
and Justinian speaks of it as a thing of the past. A filiusfamilias 
was only liable to execution against his estate. Incarceration for 
insolvency was confined to debts arising from a money loan. If. 
& son had contracted such a debt with his father's sanction, the 
creditor had his remedy against the father: if the loan had not 
been sanctioned the debt was irrecoverable. If the father was 
insolvent, both son and father were liable to incarceration. 

With the principle of noxal actions we may compare the law of 
Damni infecti (damage anticipated), which allowed the owner of a 
dilapidated house to exonerate himself from damages caused to his 
neighbours! property by surrendering the house; or the rule of 
English law, by which the responsibility of a shipowner for damage 
done without his fault to another ship or cargo was limited to the 











Iv. §§ 82-87.] DE HIS PER QUOS AGERE POSSUMUS. 


§31 


value of his ship and the freight she was earning at the time, 


53 George III, c. 159. 


Mischief (pauperies) oceasioned by an animal might by a law of 
the Twelve Tables be atoned for by noxae deditio, Inst. 4, 9. 


DE HIS PER QUOS 


$ 82. Nunc admonendi sumus 
agere nos aut nostro nomine aut 
alieno, ueluti cognitorio, procura- 
torio, tutorio, curatorio, cum olim 
quo tempore legis actiones in usu 
fuissent, alieno nomine agere non 
liceret, praeterquam ex certis causis. 

$ 83. Cognitor autem certis uer- 
bis in litem coram aduersario sub- 
stituitur. nam actor ita cognitorem 
dat QVOD EGO A TE uerbi gratia 
FVNDVM PETO, IN EAM REM L. 
TITIVM TIBI COGNITOREM DO; ad- 
uersarius ita QVIA TV A ME FVNDVM 
PETIS, IN EAM (REM) TIBI P. MEV- 
IVM COGNITOREM DO. potest ut 
actor ita dicat QVOD EGO TECVM 
AGERE VOLO, IN EAM REM COGNITO- 
REM DO, aduersarius ita QVIA TV 
MECYM AGERE VIS, IN EAM REM 
COGNITOREM DO. nec interest prae- 
sens an absens cognitor detur; sed si 
absens datus fuerit, cognitor ita erit, 
&i cognouerit et susceperit officium 
cognitoris. 


§ 84. Procurator uero nullis certis 
uerbis in litem substituitur, sed ex 
solo mandato et absente et ignorante 
aduersario constituitur. quin etiam 
sunt qui putant eum quoque pro- 


curatorem uideri cui non sit man- 


datum, si modo bona fide accedat 
ad negotium et caueat ratam rem 
dominum habiturum ; quamquam 
et ille cui mandatum (est), plerum- 
que satisdare debet, quia saepe 
mandatum initio litis in obscuro 
est et postea apud iudicem ostendi- 
tur. 


AGERE POSSUMUS. 


$ 82. A man may sue either for 
himself or for another as cogni- 
ior, procurator, guardian, curator, 
whereas in the days of statute-pro- 
cess a man could only sue for 
another in certain cases. 


$83. A cognitor for & cause is 
appointed by a set form of words in 
the presence of the adversary. The 
plaintiff appoints a cognitor in the 
following form: *Whereas I sue 
you for, say, an estate, in that 
matter I appoint Lucius Titius as 
my cognitor;' the defendant thus : 
‘Whereas you sue me for an estate, 
in that matter I appoint Publius 
Maevius as my cognitor. Or the 
plaintiff may use the words: 
‘ Whereas I intend to sue you, in 
that matter I appoint Lucius Titius 
as my cognitor;’ and the defendant 
these: ‘ Whereas you intend to sue 
me, in that matter I appoint Publius 
Maevius as my cognitor.’ It is im- 
material whether the person named 
as cognitor is present or absent ; 
but if an absent person is named, 
he is only cognitor if he consents 
and undertakes the office. 

§ 84. A procurator is appointed 
in any words that amount to in- 
structions, even in the absence and 
without the knowledge of the ad- 
versary. According to some, in- 
structions are not requisite if a 
person undertakes the office in good 
faith and engages that the principal 
will ratify his proceeding. Although 
he who acting under instructions is 
also as a rule bound to give this 
security, the fact that he is so acting 
being often concealed in the initial 
stage of the suit, and only coming 


Mm 2 





532 


§ 85. Tutores autem et curatores 
quemadmodum constituantur, primo 
commentario rettulimus. 

§ 86. Qui autem alieno nomine 
agit, intentionem quidem ex persona 
domini sumit, condemnationem au- 
tem in suam personam conuertit. 
nam si uerbi gratia L. Titius ( pro) 
P. Meuio agat, ita formula conci- 
pitur 8I PARET N. NEGIDIVM P. 
MEVIO SESTERTIVM X MILIA DARE 
OPORTERE, IVDEX N. NEGIDIVM L. 
TITIO SESTERTIVM X MILIA OON- 
DEMN4. SI NON PARET, ABSOLVE; 
in rem quoque si agat, intendit P. 
MEVII REM ESSE EX IVRE QVIRITIVM, 
et condemnationem in suam perso- 
nam conuertit. 


$87. Ab aduersarii quoque parte 
si interueniat aliquis cum quo actio 
constituitur, intenditur dominum 
DARE OPORTERE, condemnatio au- 
tem in eius personam conuertitur 
qui iudicium accepit; sed cum in 
rem agitur, nihil (tn) intentione 
facit eius persona cum quo agitur, 
Siue suo nomine siue alieno aliquis 
iudicio interueniat ; tantum enim 
intenditur REM ACTORIS ESSE. 


DE ACTIONIBUS. 


[1v. $$ 82-87. 


to light subsequently when the 
parties are before the judge. 

§ 85. How guardians and curators 
are appointed has been explained in 
the first. book. 

§ 86. He who sues for another 
names the principal in the intentio 
and himself in the condemnatio. If, 
for example, Lucius Titius sues for 
Publius Mevius, the formula runs 
thus: ‘If it be proved that Nume- 
rius Negidius ought to pay to Pub- 
lius Mevius ten thousand sesterces, 
do thou, judex, condemn Numertus 
Negidius to pay to Lucius Titius 
ten thousand sesterces ; if it be not 
proved, absolve him. In a real 
action the thing is affirmed in the 
intentio to be the property of Pub- 
lius Mevius by the law of the 
Quirites, and the representative is 
named in the condemnatio. 

$87. Whenthe defendant is repre- 
sented by & cognitor or procurator 
in a personal action the principal is 
nained in the iutentio, and his repre- 
sentative in the condemnatio. In 
& real action neither the principal 
defendant nor his representative is 
named in the intentio, which only 
affirms the proprietorship of the 
plaintiff. 


§ 82. If there is a genuine antithesis between suo nomine and 








alieno nomine, the procuratorium, tutorium, &c., nomen, which is 
the alienum nomen with which the procurator or guardian sues, 
must mean the name, not of the procurator or guardian, but of 
the principal or ward. When a man sues suo nomine he uses his 
own name in the intentio, therefore when a man sues procuratorio 
nomine he uses the procuratorium nomen in the intentio. But the 
name inserted in the intentio by a procurator is not the name of 
the procurator but that of the principal: the name of the pro- 
eurator is only inserted in the condemnatio $86. Statute-process 
was incapable of representation or procuration (alieno nomine agere) 
because it stopped short at pronuntiatio; that is to say, it had no 
condemnatio, in which the procurator’s name could be substituted 
for that of the principal, Kuntze, $ 243. 





1v. §§ 88-102.] DE SATISDATIONIBUS. 533 


Justmian enumerates the cases in which representation was 
permitted in statute-process: Cum olim in usu fuisset alterius 
nomine agere non posse, nisi pro populo, pro libertate, pro 
tutela, Inst. 4, 10, pr. Eam popularem actionem dicimus quae 
suum jus populo tuetur, Dig. 47, 28, 1. * A publie action is 
one which defends the interest of the people) A popularis actio 
was one brougbt by & common informer to recover & penalty. 
The informer enforced, not a private but a public right, that 
is, sued as the procurator of the people; and therefore an infamis, 
as he was disabled from being procurator, was incompetent to 
prosecute in such an action. To public actions and actions by 
an assertor libertatis (see 1 $ 17, comm.) Justinian adds, as main- 
tainable by & representative under the old jurisprudence, actions in 
behalf of a ward. We havealready mentioned, 1 $6 142—154, comm., 
that until the ward attained the age of seven the guardian acted 
in the name of the ward; after the age of seven the ward acted 
with the authority of the guardian. 

§ 84. A person who without instructions (mandatum) officiously 
interposed and undertook the defence of an absent neighbour was 
called negotiorum gestor (Inst.8, 27, 1) or defensor, or procurator 
voluntarius. The employment of a cognitor, from the necessity 
of appointing him in the presence of the adversary and by a certain 
formula, was discontinued as inconvenient, and Justinian only speaks 
of the procurator. Bethmann-Hollweg, vol. 3, appendix 1, quotes 
from Symmachus the report of a case in which the defendant 
objected to a procurator (exceptio invalidae procurationis), and the 
plaintiff proved his appointment by production of a document from 
the praetor's record office (ex actis praetoriis) at a late stage of 


judicial proceedings. 


- 


DE SATIBDATIONIBUS. 


$ 88. Videamus nunc quibus ex 
causis is cum quo agitur, uel hic qui 
agit, cogatur satisdare. 


§ 89. Igitur si uerbi gratia in 
rem tecum agam, satis mihi dare 
debes; aequum enim uisum est 
(te) ideo quod interes tibi rem quae 
an ad, te pertineat dubium est, possi- 
dere conceditur, cum satisdatione 
cauere, ut si uictus sis nec rem ipsam 
restituas nec litis aestimationem 


$ 88. We next inquire under 
what circumstances the plaintiff or 
defendant is required to give se- 
curity. 

$ 89. If I sue you in a real 
action you must give me security. 
As you are permitted during the 
suit to retain possession of a thing 
to which your title is doubtful, it 
is fair that you should give me 
security with sureties so that if 
judgment goes against you and you 


534 


sufferas, sit mihi potestas aut tecum 
agendi aut cum sponsoribus tuis. 


: § 90. Multoque magis debes satis- 
dare mihi, si alieno nomine iudi- 
cium accipias. 


$ 91. Ceterum cum in rem actio 
duplex sit, aut enim per formulam 
petitoriam agitwr aut per sponsio- 
nem, siquidem per formulam peti- 
toriam agitur, illa stipulatio locum 
habet quae sppellatur IVDICATVM 
SOLVI; 8i uero per sponsionem, illa 
quae appellatur PRO PRAEDE LITIS 
ET VINDICIARVM. 

$ 92. Petitoria autem formula 
haec est qua actor intendit REM 
BVAM ESSE. 

$ 93. Per sponsionem uero hoc 
modo agimus : prouocamus aduersa- 
rium tali sponsione 81 HOMO QVO DE 
AGITYR EX IVRE QVIRITIVM MEVS 
EST, SESTERTIOS XXV NVMMOS DARE 
SPONDES | deinde formulam edimus 
qua intendimus sponsionis summam 
nobis dari oportere; qua formula 
ita demum uincimus, si probaueri- 
mus rem nostram esse. 

$ 94. Non tamen Áaec summa 
sponsionis exigitur. non enim poe- 
nalis est, sed praeiudicialis, et prop- 
ter hoc solum fit ut per eam de re 
iudicetur. unde etiam is cum quo 
agitwr,non restipulatur. ideo autem 
appellata est PRO PRAEDE LITIS VIN- 
DICIARVM stipulatio, quia in locum 
praedium successit, qui olim, cum 
lege agebatur, pro lite et utndiciis, 
id est pro re et fructibus, & posses- 
sore petitori dabantur. 


$ 95. Ceterum si apud centum- 
uiros agitur, summam sponsionis 
non per formulam petimus, sed per 


DE ACTIONIBUS. 


[rv. $$ 88-102. 


refuse to restore the thing or to 

pay its value I may have the power 

of proceeding against you or your 
nsors. 

§ 90. And there is all the more 
reason that you should give security 
if you are only the representative of 
another. 

§ 91. A real action is either 
commenced by a real formula or by 
sponsio: if by real formula, sti- 
pulation is called security for satis- 
faction of judgment; if by sponsio, 
security in leu of warranty for 
property and interim possession. 


§ 92. The Intentio of a real 
formula asserts the proprietorship 
of the plaintiff. 

$ 93. In a sponsio we challenge 
the defendant to a wager as follows : 
* If the slave in question belongs to 
me by the law of the Quirites, do 
you promise to pay me twenty-five 
Besterces ?' and we then deliver a 
formula in which we sue for the 
sum named in the wager, &nd obtain 
judgment if we prove our proprietor- 
ship. 

§ 94. But the sum named in the 
wager is not exacted, for it 1s not 
penal, but prejudicial, and the 
wager is merely a device for insti- 
tuting a trial of ownership. Ac- 
cordingly, the defendant does not 
exact a counter promise from the 
plaintiff. The name of security in 
lieu of warranty for property and 
interim possession is derived from 
the warrantors which it superseded ; 
for in the days of statute-process 
restitution of the thing in dis- 
pute and the mesne profits was 
Secured to the plaintiff by the en- 
gagement of the defendant's war- 
rantors. 

$ 95. In the centumviral court 
the sum of the wager is not sued for 
by formula but by statute-process. 











1v. $$ 88-102.] 


legis actionem; sacramento enim 
reum prouocamus; eaque sponsio 
sestertium CXXY nummum fit ectlicet 
propter legem Crepereiam. 

$ 96. Ipse autem qui in rem agit, 
si suo nomine agat, satis non dat. 


$ 97. Ac nec si per cognitorem 
quidem agatur, ulla satisdatio uel 
ab ipeo uel & domino desideratur. 
cum enim certis et quasi sollemni- 
bus uerbis in locum domini substi- 
tuatur cognitor, merito domini loco 
habetur. 

$ 98. Procurator uero si agat, 
satisdare iubetur ratam rem domi- 
num habiturum; periculum enim 
est, ne iterum dominus de eadem re 
experiatur, quod periculum (non) 
interuenit, si per cognitorem actum 
fuerit, quia de qua re quisque per 
cognitorem egerit, de ea non magis 
amplius actionem habet quam si 
ipse egerit. 

$ 99. Tutores et curatores eo 
modo quo et procuratores satisdare 
debere uerba edicti faciunt; sed 
aliquando illis satisdatio remittitur. 

$ 100. Haec ita, si in rem 
agatur; si uero in personam, ab 
actoris quidem parte quando satis- 
dari debeat quaerentes, eadem repe- 
temus quae diximus in actione qua 
in rem agitur. 

$ 101. Ab eius uero parte cum 
quo agitur, siquidem alieno nomine 
aliquis interueniat, omni modo satis- 
dari debet, quia nemo alienae rei 
sine satisdatione defensor idoneus 
intellegitur. sed siquidem cum 
cognitore agatur, dominus satisdare 
iubetur; si uero cum procuratore, 
ipse procurator. idem et de tutore 
et de curatore iuris est. 

$ 102. Quodsi proprio nomine 
aliquis iudicium accipiat in per- 
sonam, certis ex causis satisdare 
folet quas ipse praetor significat. 
quarum satisdationum duplex causa 
est: nam aut propter genus actionis 


DE SATISDATIONIBUS. 


535 


We challenge the defendant to 
deposit a stake of a hundred and 
twenty-five sesterces, the amount 
fixed by the lex Crepereia. 

§ 96. In a real action a plaintiff 
who sues in his own name gives no 
security. 

§ 97. And if a cognitor sues, no 
security is required either from him 
or from his principal, for the cog- 
nitor, being appointed by certain 
sacramental terms, is identified with 
the principal. 


§ 98. But if a procurator sues, he 
is required to give security for the 
ratification of his proceedings by his 
principal, as otherwise the principal 
might sue again on the same claim, 
which he cannot do after suing by a 
cognitor. 


$ 99. Guardians and curators are 
required by the edict to give the 
same security as procurators, but 
are sometimes excused. 

§ 100. So much for real actions. 
In personal actions the plaintiff is 
governed by the same rules as in 
real actions. 


§ 101. If the defendant is repre- 
sented by another person, security 
must always be given, for no one is 
allowed to defend another without 
security: but in a suit against a 
cognitor it is the principal who 
gives security : in a suit against a 
procurator the procurator gives 
security; and the same applies to 
guardians and curators. 

§ 102. If the defendant is sued in 
his own name, in a personal action, 
he only gives security in certain 
cases named in the edict. These 
cases are of two kinds, depending 
either on the nature of the ac- 








536 


satisdatur, aut propter personam, 
quia suspecta sit; propter genus 
actionis, ueluti iudicati depensiue 
aut cum de moribus mulieris agi- 
tur; propter personam, ueluti si 
cum eo agitur qui decoxerit, cuius- 
ue bona (a) creditoribus possessa 
proscriptaue sunt, siue cum eo 
herede agatur quem praetor sus- 
pectum aestimauerit. 


DE ACTIONIBUS. 


[xv. $§ 88-102. 


tion or on the character of the de- 
fendant. The nature of the action 
is the reason in a suit against a 
judgment debtor, or a principal in- 
debted to his surety, or a husband 
who retains a portion of the dower 
of his divorced wife on the plea of 
immorality. The character of the 
defendant is the reason if he has 
been insolvent, or if his goods have 





been possessed or proscribed for sale 
by his creditors, or if he is a successor 
whom the praetor pronounces to be 
open to suspicion. 


§ 88. In areal action the defendant was required to give security ; 
in a personal, with a few exceptions, if he appeared in his own cause, 
he was not required. Justinian relieved him of the necessity in 
real actions. 

In the time of Gaius if the defendant in a real action refused to 
give security, judicatum solvi, the possession was transferred from 
him to the plaintiff by the interdict Quem fundum, Quam here- 
ditatem, or Quem usumfructum, as the case might be, and he was 
reduced to the position of plaintiff, Fragment of Ulpian’s Insti- 
tutions of Civil Law. ‘Some interdicts may either initiate or 
restore possession, as the interdicts Quem fundum and Quam here- 
ditatem. For if I sue a person for land or an heritage, and he 
refuses to give security, he is compelled to transfer the possession 
to me whether I never before had possession, or once had and after- 
wards lost possession, Ulpian, Fragmenta Vaticana, 92. ‘The 
plaintiff has a right to security in a real action for a servitude as 
well as for a corporal thing, and therefore, analogous to the inter- 
dict, Quem fundum, there is an interdict, Quem usumfructam, for 
the transfer of a usufruct, Paulus, Receptae Sententiae, 1, 11, 1. 
‘In a demand of a heritage, security must be given, or else pos- 
session is transferred to the demandant. If the demandant refuse 
to give security, possession remains with the tenant, for in equal 
circumstances law favours the possessor.’ 

The same rule applied to Praedial servitudes. If A asserted 
against B the Urban, servitude altius Non tollendi (si ageretur, jus 
vieino non esse, aedes altius tollere), i.e. sought by actio Confessoria 
of jus altius Non tollendi (with an intentio, perhaps, in the following 
form; Si paret jus Numerio Negidio non esse aedes altius tollendi 


Iv. $$ 88-102.] DE SATISDATIONIBUS. 537 


invito Aulo Agerio) to restrain B from exercising the indefinite 
powers of ownership by raising the height of his house, B might 
decline to defend the action and thus avoid a judicial decision as 
to the existence of the servitude: but as & penalty for this he 
was not allowed afterwards to exercise his alleged right without 
first proving before a tribunal the nullity of A's claim: proving, 
that is, either that A never had such a servitude over the house of 
B, or that B had extinguished it by acquisition of the counter- 
servitude (libertatis usucapio). That is to say, being originally 
in possession, or rather quasi-possession of his right (for servitudes 
are subjects of quasi-possession) B was put out of possession; 
and, if he afterwards wished to exercise his right of building, had 
first to recover possession of it as plaintiff in a suit: Le. by actio 
Negatoria of jus Non altius tollendi, if he denied that A as do- 
minans ever enjoyed such a servitude, or by aetio Confessoria of 
jus altius tollendi if he claimed as serviens to have reacquired the 
freedom of his house by usucapio libertatis (in either case, perhaps, 
with an intentio in the following form: Si paret jus Aulo Agerio 
esse aedes altius tollendi invito Numerio Negidio), $ 8. 

The penalty would only consist in an inversion of the order of 
proof: B as plaintiff would have to prove his own proprietorship 
before À as defendant was put to prove the existence of the servi- 
tude: whereas, if À had been plaintiff, A would have had to begin 
by proving the existence of the servitude before B was put to his 
answer. 

So vice versa: if B had originally wished to prove his right to 
build as plaintiff, either in an aetio Negatoria of jus Non altius 
tollendi, or in an actio Confessoria of jus altius tollendi; and if 
A had declined to defend either action by giving securities, &c. in 
the course prescribed by law; A would have been restrained from 
afterwards interfering with B except as plaintiff in a suit in which 
B was made defendant, Dig. 39, 1,15. Cf. 2, §§ 1-14, $$ 28-89, 
comm., §§ 1-9, comm. 

At a later period the cautio judicatum solvi was not required 
from the defendant in a real action, and translatio possessionis might 
be averted if the defendant merely gave the cautio judicio sisti. 

The sum staked in the praedes sacramenti, which Gaius bad 
told us, § 14, was a thousand or five hundred asses, he now, § 95, 
defines as one hundred and twenty-five sesterces. 

The explanation of this is as follows: Originally the sestertius, 


538 DE ACTIONIBUS. [rv. $$ 88-102. 


as the name implies, was two asses and a half, and the denarius 
ten asses. Both the sestertius and the denarius were silver coins. 
In the second Punie War, about B.c. 217, in consequence of the 
insolveney of the State, the denarius was made equal to sixteen 
asses and the sestertius remained, as before, one fourth of the 
denarius, that is, became equal to four asses. One hundred and 
twenty-five sesterces, therefore, were equal to five hundred asses. 
This change was brought about by the lex Crepereia. 

The Sponsio praejudicialis, though a personal action in form, 
might be in effect & real action. It resembled the Feigned Issue 
or issue in & fictitious action on & wager, whereby the Court of 
Chancery, before it had the power of summoning a jury might 
refer an issue of fact to trial by jury, or the parties in a court 
of law by consent or by direction of some act of parliament might 
determine some disputed right without the formality of a regular 
action, thereby saving much time and expense, Stephen’s Com- 
mentaries, 5,14. In the Sponsio poenalis there was both a sponsio 
and restipulatio, that is, both parties forfeited the penal sum if they 
lost the action, and the penal sum was serious, in an action de 
pecunia certa credita being one third and in an action de pecunia 
constituta being one half of the sum in dispute, § 171. 

In the Sacramentum and Sponsio two different stipulations 
must be distinguished, In the Sacramentum there was (A) the 
praedes sacramenti, and (B) the praedes litis et vindiciarum; in 
the Sponsio there was (A) the sponsio praejudicialis, and (B) the 
satisdatio pro praede litis et vindiciarum. In the formula petitoria 
there was only one stipulation, (B) the satisdatio judicatum solvi, 
corresponding to the second stipulation in the Sacramentum and 
S ponsio. 

In & judicium Cascellianum for recovering possession, $ 166, and 
fructus, § 167, or a Sponsio based on the interdicts Uti possidetis 
and Utrubi fuit, both parties being originally both plaintiff and 
defendant, there were (A) two sponsiones and two restipulationes for 
a penal sum ; there was no security (B) corresponding to the security 
Pro praede litis et vindieiarum ; but (C) a fructuaria Stipulatio, 
$ 166, for a penal sum equal to the value of the. mesne profite; or, 
as an alternative, a Satisdatio judicatum solvi, $ 169, contemplating 
an action (judicium fructuarium) based on the Licitatio or auction 
of the fruits. 


$ 101. As a plaintiff's procurator could not bring to trial and 


rv. §§ 88-102.] DE SATISDATIONIBUS. 539 


consume the plaintiff's right, he had to give cautio rem ratam 
dominum habiturum: and as a defendant's procurator could not 
bring to trial the defendant's obligation, he had to give security 
judicatum solvi. 

$ 102. The husband sued for the dower of his divorced wife might 
retain a portion on various grounds, of which Immorality was one, 
Ulpian, Liber Regularum, 6, 9. ‘Retentions in the restitution of 
dower are on aecount of children, immorality, expenditure, donation, 
articles purloined by the wife. On account of children, if the fault 
of the wife, or the father in whose power she is, occasioned the 
divorce. "Then a sixth is retained on account of each child, but not 
more than three sixths altogether. For gross immorality a sixth is 
retained, for slight immorality an eighth. Only adultery is gross 
immorality.’ (Cf. § 44, comm.) 

Besides the forfeiture of a vadimonium, fraudulent absconding 
to avoid the summons to appear was an act of bankruptcy, or 
motive for missio in possessionem. Praetor ait: Qui fraudationis 
eausa latitabit, si boni viri arbitratu non defendetur, ejus bona pos- 
sideri vendique jubebo, Dig. 42, 4, 7, 1. ‘If a debtor fraudulently 
abscond, and no sufficient representative defends him, I will order 
his goods to be possessed and sold." 

A heres might, on cause shown to the praetor, immediately after 
his entry on the succession, be required by the creditors to give 
security for the payment of their claims, with the alternative of 
seizure and sale, on the mere ground of poverty, § 102. But after 
a lapse of time it was necessary to prove not only poverty, but 
fraudulent behaviour on the part of the heres, Dig. 42, 5, 81. 

The stipulation judicatum solvi.contained three clauses: Judi- 
catum solvi stipulatio tres clausulas in unum collatas habet: de re 
judicata, de re defendenda, de dolo malo, Dig. 46, 7, 6. ‘The 
stipulation judicatum solvi is composed of three clauses, for satis- 
faction of the judgment, for defending the action, and against 
malicious deterioration in case of restitution.) The action must 
be defended ‘to the satisfaction of a reasonable man,’ which was 
interpreted to mean that, if a defensor appeared before the judex, 
the second clause was not satisfied unless the defensor was prepared 
to give further security judicatum solvi, Dig. 46,7, 5, 1$ 83. ‘A 
defensor may prevent a forfeiture of the stipulation if he defends 
* to the satisfaction of an arbitrator," that is, with adequate 
security.’ 








540 DE ACTIONIBUS. [1v. $$ 88-102. 


Justinian relieved the defendant in any action who appeared in 
his own person from the first and third clauses of the security 
judicatum solvi, but not from the second. The vadimonium or 
eautio judicio sistendi, which originally, it seems, only referred to 
adjourned appearances in jure, was at this period extended to the 
judicis, and bound the defendant to appear before the judex and 
remain to the end of the trial. If, then, in consequence of an 
adjournment in jure, there had been a vadimonium between the 
parties, no further stipulation would be necessary; otherwise the 
defendant would have had to enter into the undertaking that 
formed the second clause of the stipulation judicatum solvi, Inst. 
4,11,2. ‘This is not the present rule. The defendant now is 
not required either in a real or personal action, if he appear in 
person, to give security for satisfaction of the judgment, but only 
for his own personal presence and continuance in court to the end 
of the trial.’ 

The procurator of the plaintiff appointed before the judex or in 
the record office of the magistrate by memorandum (insinuatio) 
in the register of his public proceedings (apud acta) was assimilated 
to the cognitor whom he superseded, and was not required to give 
security; otherwise he had to give security ratam rem dominum 
habiturum, because Litis Contestatio by him operated no con- 
sumption. 

The procurator of the defendant gave no security ; but his prin- 
eipal, as fidejussor of his procurator, gave security for the pro- 
curator judicatum solvi, including a mortgage (hypotheca) of all 
his property. A defensor (unauthorized representative) of the 
defendant gave security judicatum solvi, because Litis Contestatio 
by him operated consumption. 


DE IUDICIIS LEGITIMIS ET QUAE IMPERIO CONTINENTUR. 


$ 103. Omnis autem iudicia aut 
legitimo iure consistunt aut imperio 
continentur. 

$104. Legitima sunt iudicia | quae 
in urbe Roma uel intra primum 
urbis Romae miliarium inter omnes 
ciues Romanos sub uno iudice acci- 
piuntur; eaque (e) lege Iulia iudi- 
ciarta, nisi in anno et sex mensibus 
judicata fuerint, expirant. et hoc 


$ 103. Actions are either statut- 
able or supported by 

power. 

Ot 104. Statutable actions are 
those that are instituted at Rome, 
or within an area limited by the 
first milestone, between Roman 
citizens, before a single judex ; and 
these by the lex Julia judiciaria 
expire in a year and six months 


rv. §§ 103-109.] 


est quod uulgo dicitur e lege Iulia 
litem anno et sex mensibus mort. 


$ 105. Imperio uero continentur 
recuperatoria et quae sub uno iudice 
accipiuntur interueniente peregrini 
persona iudicis aut litigatoris. in 
eadem causa sunt, quaecumque extra 
primum urbis Romae miliarium tam 
inter ciues Romanos quam inter 
peregrinos accipiuntur. ideo autem 
imperio contineri iudicia dicuntur, 
quia tamdiu ualent, quamdiu is qui 
ea praecepit, imperium habebit. 


$ 106. Et siquidem imperio con- 
tinenti iudicio actum fuerit, siue 
in rem siue in personam, siue ea 
formula quae in factum concepta 
est, siue ea quae in ius habet inten- 
tionem, postea nihilo minus ipso 
iure de eadem re agi potest; et 
ideo necessaria est exceptio rei iudi- 
catae uel in iudicium deductae. 


$107. Si uero legitimo iudicio 
in personam actum eit ea formula 
quae iuris ciuilis habet intentionem, 
postea ipso iure de eadem re agi 
non potest, et ob id exceptio super- 
uacua est; si uero uel in rem uel 
in factum actum fuerit, ipso iure 
nihilo minus postea agi potest, et 
ob id exceptio necessaria est rei 
iudicatae uel in iudicium deductae. 


$ 108. Alia causa fuit olim legis 
actionum: nam qua de re actum 
semel erat, de ea postea ipso iure 
agi non poterat; nec omnino ita, 
ut nunc, usus erat illis temporibus 
exceptionum. 


§ 109. Ceterum potest ex lege 
quidem esse iudicium, sed legiti- 


IMPERIUM. 


541 


from their commencement, unless 
previously decided; which is the 
meaning of the saying that by the 
lex Julia an action dies in eighteen 
months. 

$ 105. Magisterial power sup- 
ports those actions that are insti- 
tuted before recuperators, or before 
a single judex, if the judex or a 
party is an alien, or beyond the 
first milestone, whether the parties 
are citizens or aliens. They are 
said to be upheld by magisterial 
power because they can only be 
prosecuted as long as the praetor 
who delivered the formula continues 
in office. 

$ 106. The institution of an ac- 
tion binding by magisterial power, 
whether it was real or personal, 
&nd whether it had a formula of 
fact or an allegation of law, is not 
an extinctive bar (§ 115) to the in- 
stitution of a subsequent action on 
the same question: which must be 
repelled by a counteractive plea 
alleging the previous decision or 
litigation. 

$ 107. But the institution of a 
statutable personal action with an 
Intentio of civil law, is an extinctive 
bar to a subsequent action on the 
same question, and a counteractive 
plea is not required. The insti- 
tution of a statutable real action 
or a statutable personal action with 
& formula of fact, is no extinctive 
bar to a subsequent action on the 
same question, and the counteractive 
plea of previous decision or liti- 
gation is necessary. 

§ 108. It was otherwise anciently 
with the forms of statute-process, 
when a subsequent action on the 
same question was always ex- 
tinctively barred, and counteractive 
pleas were unknown to the code of 
procedure. 

$109. An action may be founded 
on statute and yet not be statutable, 


542 


mum non esse; et contra ex lege 
non esse, sed legitimum esse. nam 
si uerbi gratia ex lege Aquilia uel 
Ollinia uel Furia in prouinciis aga- 
tur, imperio continebitur iudicium ; 
idemque iuris est et si Romae apud 
recuperatores agamus, uel apud 
unum iudicem interueniente pere- 
grini persona ; et ex diuerso si ex 
ea causa ex qua nobis edicto prae- 
toris datur actio, Romae sub uno 
iudice inter omnes ciues Romanos 
accipiatur iudicium, legitimum est. 


DE ACTIONIBUS. 


[1v. $$ 103-109. 


or statutable and yet not founded 
on statute. For instance, an action 
founded on the lex Aquilia, or 
Ollinia, or Furia, if instituted in 
the provinces, determines with the 
praetorship, and so it does if insti- 
tuted at Rome before recuperators, 
or though iustituted before & single 
judex, if the judex or a party is an 
alien; and, on the contrary, an 
action founded on the edict, if in- 
stituted at Rome, before a single 
judex, between Roman citizens, is 





statutable. 


Imperium and Jurisdictio were the two component parts of 
Officium jus dicentis, Le. the power of the magistrate (consul, 
praetor, curule edile) charged with the administration of civil 
justice. 

Of these two elements, Jurisdictio denoted the power (perhaps 
originally vested in the Pontifex) of administering the civil law in 
the ordinary course of procedure. It consisted chiefly in presiding 
over the preliminary stages of litigation, and in the period of 
legis actiones was summed up in the utterance of the solemn 
words, Do, Dico, Addico; but in the formulary period it was 
performed, not by oral utterances, but by the delivery of written 
documents (verbis conceptis). In genuine litigation it was called 
jurisdictio contentiosa; in fictitious litigation, e.g. manumission 
by vindicta, alienation by in jure cessio, it was called jurisdictio 
voluntaria. 

Imperium as coupled with the administration of civil justice 
(imperium quod jurisdictioni cohaeret, Dig. 1, 21, 1), or as includ- 
ing it (cui etiam jurisdictio inest, Dig. 2, 1, 8), was called im- 
perium mixtum, as opposed to imperium merum, or gladii potestas, 
the administration of eriminal justice. Imperium mixtum may be 
divided into two functions, (1) cognitio extraordinaria and (2) 
actiones honorariae. 

(1) Magistrates invested with imperium had the power of issuing 
commands (jus decernendi) to which they enforced obedience by 
fine (mulcta), distress (pignus), and imprisonment, and, as a pre- 
liminary to issuing à command (decretum), of summoning parties 
before them (vocatio), by means of a lictor, and conducting in 
person an investigation of facts (causae cognitio). To these 


1v. $$ 103-109.] IMPERIUM. 643 


functions of the praetor must be referred Restitutio in integrum, 
Missio in possessionem, and other proceedings which the praetor 
decided in person without reference to a judex, a form of procedure 
which finally superseded the ordo judiciorum or formulary system. 

(2) But even of suits belonging to the ordo judiciorum, which 
conformed, that is, to the principle of appointing a judex, a portion 
must be referred to the praetor's imperium. All the new actions, 
unknown to the civil law, which the praetor invented in virtue of 
the powers conferred by the law of uncertain date that introduced 
the formulary system, the lex Aebutia; all fictitious actions and 
actions in factum ; in a word, all actiones honorariae, were emana- . 
tions of the praetorian imperium, 

Jurisdictio is sometimes used in a wider sense as equivalent to 
officium jus dicentis: and then Lex and Jurisdictio form an anti- 
thesis similar to that which is formed by Jurisdictio in the narrower 
sense and Imperium: the antithesis, namely, of Legislator and 
Administrator. 

This antithesis is the principle of many of the divisions or classi- 
fications in Roman jurisprudence and is expressed in various terms. 
We have jus legitimum opposed to jus praetorium, § 34: jus 
legitimum opposed to praetoris jurisdictio, § 111: jus civile 
opposed to jus praetorium or jus honorarium, Dig. 1, 1, 7: actio 
legitima opposed to actio honoraria, Dig. 35, 2, 82, pr. and Collatio, 
2, 5, 5: actio legitima opposed to actio utilis, Dig. 39, 8, 22, 2: 
aetio civilis opposed to aetio honoraria (omnes actiones aut civiles 
dicuntur aut honorariae) Dig. 44, 7, 25, 2, and Dig. 50, 16, 178, 3: 
actiones quae ipso jure competunt opposed to actiones quae a 
praetore dantur, $112: actiones quae ex legitimis et civilibus 
eausis descendunt opposed to actiones quas praetor ex sua juris- 
dictione comparatas habet, Inst. 4, 6, 8: actio civilis and obligatio 
civilis opposed to actio in faetum a praetore danda, Dig. 2, 14, 7,2 : 
actio civilis opposed to interdictum, Dig. 48, 26, 14: and lex 
opposed to praetor (actionum modus vel lege vel per praetorem 
introductus), Dig. 50, 17, 27. 

Although the division into judicia legitima and judicia imperio 
continentia does not exactly coincide with the division into actiones 
legitimae and actiones honorariae (e.g. an actio in factum if 
litigated at Rome before a Roman judex by two Romans would 
be judicium legitimum, and, vice versa, an actio civilis if litigated 
before recuperators or in the provinces or between aliens would be 


544 DE. ACTIONIBUS. [rv. $$ 103-109. 


judicium imperio continens, § 109); yet it is essentially the same, 
being based on the same antithesis of the Legislator and the 
Executive. 

§§ 104, 105. Statutory actions (judicia legitima), so named from 
the lex Julia judiciaria, the statute by which they were defined, 
had by that statute a pendency of eighteen months. After that 
period they could neither be prosecuted nor renewed, as the right 
of action was eonsumed by res in judicium deducta. If the delay 
was caused by the defendant the plaintiff had & remedy by an 
action De dolo, Dig. 4, 8, 18, 4. Actions binding (continentia) by 
magisterial power had a still shorter pendency, the commission of 
the judex only continuing in force so long as the praetor who 
appointed him, and who himself was only appointed for a year, 
continued in office. 

It is difficult to reconcile this account of the prescription or limit- 
ation of legal process with what we read of the duration of some 
controversies. Martial speaks of a cause that had been litigated in 
the three Fora, the Forum Romanum, the Forum Julium, and the 
Forum Augustum, for twenty years: 


Lis te bis decimae numerantem frigora brumae 
Conterit una tribus, Gargiliane, foris. 

Ah miser et demens! viginti litigat annis 
Quisquam cui vinci, Gargiliane, licet? 7, 65. 


Bethmann-Hollweg, $ 80, suggests that the limitation did not 
apply to Centumviral suits nor to Cognitio extraordinaria; and 
that any litigation might be protracted by a series of appeals. 

This limit to the duration of legal proceedings, though it has 
left some traces in the Digest, was obsolete long before Justinian. 
Theodosius limited the pendency of actions to thirty years, Cod. 
"Theod. 4, 14, 1: i.e. he ordained that as the right of action expired 
unless Litis contestatio took place within thirty years from the 
nativity of an action; so, after Litis contestatio, an interval of 
thirty years after any act of the Judge or one of the parties should 
be a bar to any further prosecution of the action. Justinian limited 
the duration of civil suits to three years from Litis contestatio 
and sanctioned the law by contumacial proceedings (eremodicium) 
against the contumacious plaintiff or defendant, C. 3, 1, 18. If 
both parties agreed to let the litigation lie dormant, he limited the 
dormancy or pendency to forty years. Bethmann-Hollweg, § 147. 


rv. §§ 103-109.] RES IUDICATA. 845 


The expiration of the commission of the judex by the expiration 
of the functions of the praetor who appointed him suggests a 
reference to 1 Geo. 8, c. 28; by which act judges are continued in 
their offices notwithstanding any demise of the crown, which was 
formerly held to vacate their seats. 

The division of actions into those with a pendency of eighteen 
months (judicia legitima) and those which expire with the praetor- 
ship (judicia imperio continentia) is not coincident with the division 
into those which are ipso jure extinctive of future litigation and 
those which are merely counteractive ope exceptionis, § 106, For 
although all judicia imperio continentia, whether in jus or in 
factum, are merely counteractive; some judicia legitima, i.e. real 
actions and actiones honorariae, are not ipso jure extinctive, $ 107. 
Gaius, therefore, was guilty of an inaccuracy when, 8 §§ 180, 181, 
he identified the two divisions. 

The reason why real actions and actions in factum had not the 
same power of Novation as personal actions in jus was probably, as 
Heffter has suggested, as follows: Under the legis actiones, $ 108, 
the same question could not be the subject of a second trial. The 
lex Aebutia, which abolished the two legis actiones, denominated 
condictio and judicis postulatio, and established in their stead the 
judicia and arbitria of the formulary system, probably enacted that 
these should have the same power of novation, 3 § 180, as the 
actions which they superseded, provided they were instituted be- 
tween Roman citizens before a single judex, and within an area 
bounded by the first milestone. Proceedings, therefore, thus de- 
fined, when once instituted, extinguished the plaintiffs right of 
action. The provision of the lex Aebutia, however, was not inter- 
preted as applicable to actions in faetum; for actions in factum 
were used precisely in those cases where no right was recognized 
by the civil law, that is, where no right was enforceable by 
statute-process. Nor was it applied to Real actions, for these 
were left by the lex Aebutia to be decided by the sacramentum, 
and though they were finally absorbed by the formulary system, 
no law, apparently, ever enacted that in these cases the formu- 
lary procedure should have the same effect as the legis actio, 
and extinguish ipso jure the plaintiff's right of action. In Real 
actions and actions in factum, therefore, even though in other 
respects they were legitima, that is, fell under the definition of 
the lex Aebutia, the defendant required the protection of the 

Nn 





546 DE ACTIONIBUS. [rv. $$ 103-109. 


exceptio rei judicatae. The result is, that some actions which were 
statutable so far as pendency was concerned, masmuch as they 
fell under the statute called lex Julia, were not statutable so far 
as novation was concerned, inasmuch as they fell outside the statute 
called lex Aebutia. 

$ 109. The nature of the lex Ollinia is not known. 

The same imperium mixtum whence emanated new actions in 
favour of the plaintiff also issued exceptions in favour of the de- 
fendant, and in particular the exceptio rei judicatae, which supple- 
mented the novation or consumption whereby a nght of action was 
extinguished or annihilated (ipso jure, § 106). The aim of the 
legislator in barring once-used rights of action by consumption 
(novatio) or exceptio rei judicatae, was to protect a defendant from 
being harassed by successive suits, and to guard against the public 
evil which would arise in the shape of a general unsettlement and 
uncertainty of rights if judicial decisions were not conclusive, 
Dig. 44, 2, 6, ‘That one right of action should only be tried 
once is a reasonable rule to prevent interminable litigation and the 
embarrassment of contrary decisions. Accordingly, it was adopted 
as & maxim that (in the absence of appeal or after appeal) judicial 
decisions should be assumed to be true. Res judicata pro veritate 
accipitur, Dig. 1, 5, 25. The principle may be stated more at 
length as follows: A judgment shall not be contradicted by a 
judgment in a subsequent trial between the same parties where the 
same right is in question (except, of course, by the judgment of 
a court of appeal). ^ Exceptio rei judicatae obstat quotiens inter 
easdem personas eadem quaestio revocatur vel alio genere judicii, 
Dig. 44, 2, 7, 4. *'The plea of previous judgment is a bar when- 
ever the same question of right is renewed between the same parties 
by whatever form of action.’ Let us consider more minutely the 
import of this rule, 

The parties must be the same. Res inter alios judicatae nul- 
lum alüs praejudicium faciunt, Dig. 44, 2, 1. ‘A judgment 
between certain parties does not determine the rights of other 
parties,’ 

This is subject to certain exceptions. For instance, a judgment 
is conclusive not only against the parties but also against their 
successors, whether universal or particular, Cod. 8, 36, 2. A judgment 
in a suit litigated by the father respecting the status (legitimacy) 
of a child is conclusive on all the world. A mortgagee, purchaser, 











rv. §§ 103-109.] EXCEPTIO REI IUDICATAE. 547 


husband, are bound by the judgment in a suit litigated by the 
mortgagor, vendor, donor of dower, Dig. 42, 1, 68. A suit between. 
a testamentary heir and the heir by intestacy binds the legatees 
and the manumissi who accordingly are entitled to be made parties 
and to appeal. In these cases the judex is said to establish jus, 
i.e. jus inter omnes, not merely jus inter partes: Placet enim ejus 
rei judicem jus facere, Dig. 25, 8, 8, pr.: Jus facit haec pro- 
nuntiatio, Dig. 80, 1, 50, 1. 

The form of action is immaterial provided that the same right is 
contested. Thus a depositor, lender, pledgor, may recover damages 
for injury to the thing deposited, lent, or pledged, either by action 
on his contract or under the lex- Aquilia, but if east in one, he 
cannot bring the other. 

It is otherwise if the mght contested is really different if in one 
action a plaintiff claims a jus in rem, in the other a jus in personam. 
Paulus respondit, ei qui in rem egisset nec tenuisset, postea con- 
dicenti non obstare exceptionem rei judicatae, Dig. 44, 8, 81. ‘If 
a plaintiff after losing a real action brings a personal action, he is 
not barred by the plea of previous judgment.’ 

The term ‘the same right’ must be taken to include a nght and 
its correlative obligation ; in other words, it is immaterial that the 
position of plaintiff and defendant is inverted. Si quis rem a non 
domino emerit, mox petente domino absolutus sit, deinde posses- 
sionem amiserit, et a domino petierit, adversus exceptionem: Si 
non ejus sit res, replicatione hae adjuvabitur: At si res judicata 
non sit, Dig. 44, 2,24. ‘A purchaser of a thing from a non-pro- 
prietor, sued for it by the true proprietor and acquitted, afterwards 
losing possession thereof, and seeking (by actio Publiciana, 2 § 48) 
to recover it from the former proprietor, may meet the exception 
by which he pleads true dominion by the replication of previous 
judgment. This example further shows that the plea, though 
invented chiefly to protect defendants, is sometimes available for 
plaintiffs. 

When the same right is in question it is immaterial that the 
subject or secondary object (2 $ 1, comm.) of the right is dif- 
ferent. Thus, a plaintiff claiming to be heir, who fails when he 
brings hereditatis petitio for Blackacre, cannot afterwards bring 
hereditatis petitio for Whiteacre as a part of the same inheritance. 
Of course, if there is no question of hereditas, the difference of 
Subject involves a different right of Ownership; and the Vindicatio 

Nn2 





548 DE ACTIONIBUS. [rv. $$ 103-109. 


by which a man claims Blackacre is not barred by a previous Vin- 
dicatio in which he claimed W hiteacre. 

Perhaps the same right may be in question even when the 
primary object, the benefit which the night immediately contem- 
plates, is different. Thus, a plaintiff who fails in a condictio furtiva 
brought to recover stolen property, cannot afterwards maintain an 
actio furti to recover a penalty for theft. We might say that the 
plaintiff has a single compound right, to recover his property and 
to recover a penalty, but perhaps it is more accurate to say that 
he has two separate rights which, however, stand or fall together 
by necessary implication, and to bring this case under the following 
head. The identity of the right contested is more expressly re- 
quired in the legal maxim, De eadem re ne bis sit actio, which 
(8 $ 180, comm.) grounded the exceptio rei in judicium deductae, 
founded on the novation of the plaintiff's original right by Litis 
eontestatio. The maxim, Res judicata pro veritate accipitur, 
grounds the exceptio rei judicatae, which rests on the novation of 
Litis contestatio by Condemnatio or Absolutio, 8 $ 180. The two 
exceptions were substantially the same, and were pleaded in the 
formula by the same terms: Si ea res judicata non sit. The maxim, 
Res judicata pro veritate accipitur, is the more comprehensive as 
extending beyond the right to the facts constituting the title and 
their logical consequences. Bethmann-Hollweg, § 111. 

It is immaterial, namely, whether a proposition was decided as 
the final question, or as an essential element and immediate ground 
of the final decision (ratio decidendi). Every judgment is a decision 
not only on the ultimate issue, but by implication on all the ante- 
cedent pleas, not only the exception, replication, duplication (for 
these are exclusively counteractive, not extinctive, pleas, § 115), but 
also on all facts, e. g. solutio, acceptilatio, novatio, which would be 
put in issue in English pleading, as necessary to legitimate the 
final decision, even if, as forming extinctive pleas, they would not 
be expressed in a Roman formula. Thus, a plaintiff who fails when 
he sues by real action for a particular thing, or by a personal action 
for a debt, basing his claim on the presupposition of his succession 
to a person deceased, cannot afterwards claim the whole succession 
by hereditatis petitio. Hence we often meet with praescriptio 
praejudicialis, e. gp. Ea res agatur si in ea re praejudicium hereditati 
non fiat, § 1838, or exceptio praejudicialis, e.g. extra quam si in reum 
capitis praejudicium fiat, Cie. de Inventione, 2, 20; i.e. dilatory 





rv. §§ 103-109.] EXCEPTIO REI IUDICATAE, 549 


pleas whereby a party seeks to postpone a less important issue 
(causa minor) until a more important issue (causa major) with which 
it is indissolubly connected, shall have been decided. This prae- 
scriptio implies that if the more important issue were decided on 
possibly inadequate examination, as incidental or ancillary to the 
decision of the minor issue, the re-trial of the more important issue 
would be barred by the exceptio rei judicatae. 

Observe that the rule is, a judgment shall not be contradicted 
by a judgment in another action when the same right is in ques- 
tion, not, when the same title is in question. The latter expression 
would be sufficient to meet the case of personal actions. Here 
every different obligation is ground to support a different action, 
and every different title engenders a different obligation. Thus a 
plaintiff who fails in an action on tort alleging Dolus is not pre- 
cluded from a subsequent action on tort alleging Culpa, Dig. 40, 
12, 18. But the rule so stated would not adequately meet the 
case of real actions. Here it is immaterial that the plaintiff alleges 
a different title. There can be many obligations between the same 
parties in respect of the same subject; but the same subject only 
admits of one true dominion, and consequently of only one true 
title to dominion. Hence the plaintiff in a real action was re- 
quired to adduce all his fancied titles on pain of being barred by 
the exception of res judicata, and if, for instance, he claims owner- 
ship on the ground of tradition he cannot afterwards claim by 
another title, e. g. usucapion, § 181. A man who fails in a claim 
as testamentary heir may, however, afterwards claim as heir by de- 
scent, Dig. 5, 8, 8: he has as many actions (hereditatis petitio) as he 
has delations: in fact the legacies and the arbitrary division of the 
succession between the co-heirs make a testamentary inheritance 
quite a different right (alia res) from an intestate inheritance. (So 
Ihering, § 51. But this doctrine seems irreconcilable with Dig. 
44, 2, 30, pr. which is quoted by Savigny, § 300, as establishing 
that a man who fails when he claims as testamentary heir cannot 
afterwards claim as heir by descent.) The rule, of course, does not 
apply to a title not in existence at the tume of the former action 
(causa superveniens), and it is defeated if the plaintiff takes the 
precaution expressly to limit the former action (probably by means 
of a praescriptio) to the investigation of a specific title, a limitation 
called causae adjectio. If he was allowed by the praetor to do this 
and failed in his suit, he could afterwards claim dominion by a 


§50 : DE ACTIONIBUS. [1v. §§ 103-109. 


different title. Siquis petat fundum suum esse, eo quod Titius eum 
sibi tradiderit; si postea eum alia ex causa petat, causa adjecta, non 
debet summoveri exceptione, Dig. 44, 2, 11, 2. ‘A plaintiff who 
loses an action in which he claimed property in land on the ground 
of delivery of possession, is not barred by exception from brmging 
another real action, expressly limited, like the former, to a specific 
title,’ 

Extinctive (1pso jure) consumption of a right of action vanished 
with the formulary system, and in Justinian’s time the averment of 
Res judicata is only found under the form of Exceptio or a Counter- 
active plea. Indeed, when the judex of the republican period 
ceased fo be commissioned to hear and determine causes, one of 
the conditiens of Extinctive litis consumptio (unus judex, § 107), 
was always of necessity wanting. 

But this was not the only change: the consumption of a right 
of action by the operation of Res in judicium deducta, whether as 
an extinctive (ipso jure) or a counteractive plea (ope exceptionis) ; 
in other words, necessary Novation operated by Litis contestatio, 
was also abrogated and is not to be found in the statute-book of 
Justinian. Even the operation of Res judicata, so far as it was 
governed by the same rules as Res in judicram deducta and merely 
indicated by its name a later stage of the proceedings (sententia 
lata) may also be said to have been abolished. The rules, that is 
to say, which governed the transformed Exceptio rei judicatae, as 
it prevailed in the time of Justinian, were much more rational and 
flexible than the hard and fast doctrine of Necessary novation 
whether by Litis contestatio or by Sententia lata which prevailed 
in the time of Statute-process, § 108, and apparently survived to 
the days of Gaius. As the grounds of the judicial decision (ra- 
tiones decidendi, denoting here rather the minor premisses or facts 
established in favour of the plaintiff or defendant, than the major 
remiss or law relating to those facts) were taken into con- 
sideration before the Exceptio rei judicatae was allowed to operate, 
® plaintiff who lost his cause in consequence of Plus petitio or some 
dilatory plea or by consumption of process (duration of suit for 
eighteen months, or termination of praetorship) was no longer 
held to have eternally forfeited his claim: but suitors were merely 
restrained, in accordance with the real object of the institution, 
from harassing their opponents with renewed litigation on the 
precise questions that had once been adequately decided. The 














rv. §§ 110-113] 


PRESCRIPTION. 


551 


operation of the plea was not less powerful nor less extensive 
but made more completely conformable to equity. Savigny, 


§§ 280-801. 


DE PERPETUIS ET TEMPORALIBUS ACTIONIBUS ET QUAE AD HEREDES 
VEL IN HEREDES TRANSEUNT. 


$110. Quo loco admonendi sumus 
eas quidem actiones quae ex lege 
senatusue consultis proficiscuntur, 
perpetuo solere praetorem accom- 
modare, eas uero quae ex propria 
ipsius iurisdictione pendent, ple- 
rum|que intra annum dare. 

$111. Aliquando tamen ( praetor) 
imitatur ius legitimum: quales sunt 
eae quas bonorwm possessoribus 
ceterisque qui heredis loco sunt, 
accommodat. furti quoque manifesti 
actio, quamuis ex ipsius praetoris 
iuris dictione proficiscatur, perpetuo 
datur; et merito, cum pro capitali 
poena pecuniaria constituta sit. 


$ 112. Non omnes actiones quae 
in aliquem aut ipso iure conpetunt 
aut a praetore dantur, etiam in 
heredem aeque conpetunt aut dari 
Solent. est enim certissima iuris 
regula, ex maleficiis poenales ac- 
tiones in heredem nec conpetere 
nec dari solere, ueluti furti, ui bono- 
rum raptorum, iniuriarum, damni 
iniuriae. sed heredibus huius modi 
actiones conpetunt nec denegantur, 
excepta iniuriarum actione et si qua 
alia similis inueniatur actio. 

$113. Aliquando tamen (etiam) 
ex contractu actio neque heredi 
neque in heredem conpetit; nam 
adstipulatoris heres non habet acti- 
onem, et sponsoris et fidepromissoris 
heres non tenetur. 


$ 110. Actions founded on a law 
or senatusconsultum are perpetual; 
those founded on the edict are 
usually annual. 


$111. But some of them (in 
which the praetor) copies the rule 
of law are perpetual; for instance, 
those which are granted to the prae- 
torian successor and to other persong 
holding the position of a civil suc- 
cessor, though not such ($ 35). So 
for theft detected in the commission, 
the action, though praetorian, is per- 
petual; and properly so, the pecu- 
niary penalty being a mitigation of 
capital punishment. 

§ 112. The actions, whether civil 
or praetorian, that lie against a man 
do not always lie against his suc- 
cessor, the rule being absolute that 
for delict, for instance, theft, ra- 
pine, outrage, injury to property, 
no penal action, civil or praetorian, 
lies against the successor of the de- 
linquent ; but the successor of the 
plaintiff may bring these actions 
except in outrage and a few similar 
CASES. 


$ 113. An action upon contract 
cannot always be brought by the 
successor of the plaintiff, nor against 
the successor of the defendant ; for 
the successor of the adstipulator has 
no action, nor does any lie against 
the successor of the sponsor or fide- 
promissor. 


$ 110. Having considered what time may elapse between the 
commencement of an action or joinder in issue (litis contestatio) 





552 DE ACTIONIBUS, [rv. $$ 110-118. 


and ite termination (sententia lata), Gaius proceeds to inquire what 
time may elapse between the nativity of a right of action or the event 
which marks the first moment of the right of action. (actio nata) 
and the exercise of this right or actual commencement of the action. 

Originally all rights of action were unlimited in duration (actio 
perpetua); afterwards the praetors limited the right of bringing 
some of the new actions which they introduced to the period of a 
year from the date of the event on which the action was founded 
(actio annua) At some subsequent period longi temporis prae- 
scriptio was introduced in suits relating to land: if plaintiff and 
defendant were domiciled in the same province, ten years’ possession, 
accompanied with justus titulus and bona fides on the part of the 
possessor, deprived the plaintiff of his vindicatio: twenty years' 
possession was required if plaintiff and defendant were domiciled in 
different provinces. Indeed in provincial land such possession not 
only founded a prescription, that is, deprived the owner of his right 
of action, but operated as a usucapion; that is, transferred the 
ownership to the possessor. Constantine introduced a thirty years’ 
prescription: that is, ordained that an owner should lose his right 
of action after thirty years’ possession without either justus titulus 
or bona fides on the part of the possessor. Theodosius II, A. p. 424, 
extended this thirty years' preseription from real actions, to which 
it had hitherto been confined, to personal actions. See 2 $6 40— 
61 comm., 4 $ 131 comm. 

Prescription (as opposed to Usucapion) was required as a title or 
mode of acquisition when either a subject (e. g. provincial land) or 
@ person (e. g. peregrinus) was incapable of quiritary commercium 
and Usucapio. After Caracalla the latter occasion ceased. 

Justinian made longi temporis praescriptio, that is, possession for 
ten or twenty years, the universal mode of Usucapion for immov- 
ables; and added a second form called longissimi temporis prae- 
scriptio, or extraordinary prescription ; ordaining that thirty years’ 
possession without justus titulus, but accompanied with bona fides, 
should transfer ownership to the possessor: and that thirty years’ 
possession accompanied with mala fides should operate not as usu- 
capion but merely as prescription, Cod. 7, 39, 8. 

Whether movables were affected by longi temporis praescriptio 
is controverted, Vangerow, $ 315: they seem to be included under 
longissimi temporis praescriptio. 

In the thirteenth century the canon law required as a condition 


xv. §§ 110-113.] NATIVITY OF A RIGHT OF ACTION. 553 


both of usucapion and of prescription, in all cases brought for re- 
stitution of possession, continued bona fides (not merely bona fides 
in the inception, as the civil law required for usucapion) on the 
part of the possessor. This applied to the defendant in all real 
actions and in various personal actions, viz. commodati, depositi, 
locati, pignoraticia, or the action whereby a mortgagor recovers 
possession of the thing he has mortgaged. Accordingly, by 
canon law, the debitor rei alienae, as opposed to the debitor rei 
propriae, had neither usucapion nor prescription in the absence of 
continued bona fides. Savigny, § 244. The effect of this seems 
to be to abolish prescription as opposed to usucapion as far as real 
action (vindicatio) is concerned; for bona fides coupled with thirty 
years’ possession would make the possessor proprietor. 

The civil law, however, in respect of Dominion, recognized pre- 
scription as distinct from usucapion, Let us consider what was the 
case in respect of Servitudes. 

There was originally,as we have already stated (2 §§ 28-39comm.), 
usucapion either for all servitudes or at least urban servitudes, until 
it was abolished by the lex Scribonia. The jurists, however, and 
praetors recognized an acquisition of servitudes by Diuturnus usus, 
Longa consuetudo, Longa quasi possessio, of ten years inter praesentes 
or twenty years inter absentes. This required neither justus titulus 
nor bona fides (and therefore is never called longi temporis prae- 
scriptio) but only freedom from the three vices of possession: it 
must be nec vi, nec clam, nec precario, Dig. 8, 5, 19, pr. Whether 
any aequisition of servitudes on less stringent terms, corresponding 
to longissimi temporis praescriptio in the case of dominion, was ever 
recognized is not certain: Vangerow, § 351, supposes the contrary. 

The extinction of personal and rural servitudes was produced in 
the times before Justinian by continual non-usus during one year 
in the case of movables, during two in the case of immovables. 
Justinian extended the period for both movables and immovables 
to ten years inter praesentes and twenty years inter absentes, 
Cod. 8, 84, 18. No bona fides on the part of serviens is required. 
If the exercise of the servitude was discontinuous (limited to certain 
seasons, or alternate months, &c.) before Justinian the period required 
for extinction was doubled : Justinian required in every case twenty 
years, Cod. 8, 34,14, pr. Urban servitudes are extinguished not by 
mere non-usus on the part of dominans but by additional usucapio 
libertatis on the part of serviens, i.e. by possession of the servient 


554 DE ACTIONIBUS. [rv. $$ 110-113. 


tenement in such a condition that the servitude could not be ex- 
ercised. Such is the state of the servient tenement in servitus 
tigni immittendi when no beam is inserted and the hole where it 
might be inserted is built up: or when, in the servitus ne luminibus 
officiatur, dominans has built up his window and in front of it 
serviens has erected a wall. The same period is required as for 
extinction by non-usus: the same absence of violence, secrecy, 
permission (and, by the canon law, the same bona fides) as for the 
acquisition of other servitudes. Baron, Pandekten, § 171. 

It appears then that dominans lost not only his right of action 
but his servitude (jus) itself by longi temporis consuetudo: and 
that, properly speaking, Prescription, or Limitation of right of 
action, as opposed to Usucapio, has no existence in the sphere of 
Servitude. (I have not been able to find any writer who exa- 
mines this question.) 

In every prescription, whether of longer or shorter duration, 
two points have to be fixed: the moment at which prescription 
begins and the moment at which it is terminated. I proceed to 
the consideration of this problem. 

The date of the Nativity of a right of action (actio nata), or the 
moment from which prescription begins to run, is in Real actions 
the moment when a Real right is violated; e.g. the moment when 
the defendant takes unpermitted possession of a thing of which 
the plaintiff is proprietor; or when a hirer or borrower converts 
detention into possession by beginning to possess in his own name 
and not in the name of the proprietor. 

In Personal action on delict prescription begins to run from the 
moment of the delict; for at this moment the sanctioning right of 
the plaintiff to recover the penalty is complete. 

Similarly in Quasi-contraete: prescription of tutelae actio begins 
to run from the end of the guardianship: that of condictio indebiti 
from the date of the mistaken payment. 

In aetions on Contract, according to most writers including 
Savigny, prescription similarly begins to run from the moment at 
which the contract is violated, i.e. from the inception of the cre- 
ditor’s sanctioning right. According to Vangerow, the running 
of prescription does not always wait for the violation of the cre- 
ditors primary right, or a breach of the contract by the debtor. 
If a term for performance is fixed, then indeed prescription will 
begin to run from the expiration of the term, i.e. from the violation 














rv. §§ 110-113.] EFFECT OF PRESCRIPTION. 555 


of the plaintiff's primary right, Cod. 7, 89, 7, 4: but whenever no 
term is prefixed, prescription begins, not, as Savigny holds, from 
the creditor's demand of performance but, from the completion of 
the contract; i. e. contemporaneously with the origin of the primary 
right. It precedes any violation of the plaintiff's right, unless we - 
assume (what is absurd) that the default of instantaneous perform- 
ance is such a violation. 

Savigny would except from the rule those contracts which, like 
mutuum, depositum, commodatum, precarium, essentially and in 
their nature contemplate a certain delay in performance. In such 
contracts he holds that prescription begins not from the completion 
of the contract but from the demand of performance. 

It seems paradoxical to maintain that for the purposes of pre- 
scription the right of action precedes the existence of a wrong: 
but Vangerow’s doctrine is confirmed by the Digest: Est scriptum 
- . . eum qui rem deposuit, statim posse depositi actione agere: 
hoc enim ipso dolo facere eum qui suscepit, quod reposcenti rem 
non reddat, Dig. 16, 3, 22; from which it appears that the action 
is equivalent to a demand. Similarly we read in the Institutions, 
8, 15, 2 [Ex stipulatione pura] confestim peti potest. Indeed it 
would be strange, as Vangerow observes, if the neglect of a creditor 
or his successor to demand repayment for 100 years adjourned the 
inception of prescription for all that period. 

It is clear that the Nativity of an action is not to be identified 
with Mora, but will often be an earlier occurrence. Mora, which 
in respect of interest and liability for loss is attended with serious 
consequences to a defendant (whereas praescriptio is adverse to the 
plaintiff), does not arise before one of two events; either the expi- 
ration of the term prefixed for payment, or the debtor’s refusal 
to comply with the creditor’s demand, 2 § 280,comm. The demand 
of the creditor is necessary to disprove the presumption that the 
delay of payment was by his indulgence: no such condition delays 
the nativity of a right of action. 

The other limit of Prescription, or the event by which it is 
broken (interruptio), is any recognition of a right by the defendant 
or the institution of a suit by the plaintiff. The institution of a 
suit was in earlier times identified with Litis contestatio: but in 
the latest period, as this stage of procedure could be delayed by the 
arts of the defendant, it was necessary to fix some other point, 
with which this and the other effects of .Litis contestatio should 





556 DE ACTIONIBUS. [rv. $$ 110-118, 


be connected. Savigny, $ 278. And accordingly Citation, awarded 
by the judge in response to the libellus of the plaintiff and served 
upon the defendant (insinuatio, conventio) by a public officer, was 
deemed to be the moment at which an action commences, and 
prescription is interrupted, or usucapion is revocable. Interruptio 
per conventionem introducta, Cod. 7, 39,7, 5. Qui obnoxium suum 
in judicium clamaverit et libellum conventionis ei transmiserit . ... 
videri jus suum omne in judicium deduxisse et esse interrupta 
temporum curricula, Cod. 7, 40, 8. 

Vangerow admits that Citation is the event which interrupte 
prescription in actiones perpetuae, but holds that Litis contestatio 
(a later event) produces this effect in actiones temporales. Savigny 
points out, § 242, that interruption by Litis contestatio in the 
case of actiones temporales is not mentioned in the Digest because 
it survived in the time of Justinian, but because the older juriste 
who speak of interruption were unacquainted with any prescription 
of actiones perpetuae, these being, in early times, imprescriptible. 

We must distinguish between the interruption and the mere 
suspension, dormancy, or stay, of prescription. When prescription 
is interrupted (for instance, by acknowledgment of the debt) the 
already elapsed period of inactivity on the part of the plaintiff is 
cancelled and the whole prescription must recommence from the 
date of the interruption, When prescription is suspended, if such 
suspension takes place after prescription has begun to run, the 
period which has elapsed is not invalidated but is added to the 
period which follows the removal of the obstacle which caused the 
suspension, Suspension, as expressed in the modern maxim: Agere 
non valenti non currit praescriptio, is produced by some inability 
of the plaintiff to sue: e.g. by the infancy of the defendant either 
in perpetual or temporal actions: by the minority of the defendant 
in perpetual but not in temporal actions, Cod. 2, 40, 5: by the 
obstacles recognized in the rules of tempus utile, 2 § 165 comm., and 
by the beneficiumdeliberandi accorded to the successor, 2 $162 comm. 
By the ordinance de tigno injuncto in the Twelve Tables the nght of 
the eowner of building materials to sue for them was suspended so 
long as they formed part of a building, Inst. 2, 1, 7, 10. 

Exception had sometimes a stronger, sometimes a weaker, oper- 
ation: the stronger effect is the neutralizing of both civilis and 
naturalis obligatio. Such is the effect of the exceptio Se. Vellei- 
ani,8§§ 110-127 comm. The weaker operation is a bar to civilis 


rv. § 110-113.] ACTIVE AND PASSIVE TRANSMISSION. 557 


obligatio, but leaves naturalis obligatio unimpeded and is instanced 
by exceptio Sc. Macedoniani, 8 $$ 90, 91 comm. Naturalis obli- 
gatio, as we have already mentioned, 8 $$ 88, 89 comm., besides 
the negative feature that it is not & ground to support an 
action has six positive features: it excludes indebiti condictio in the 
event of payment by mistake, and it is a ground to support com- 
pensatio, novatio, pignus, fidejussio, constitutum. Let us examine 
whether prescription or Exceptio temporalis had the weaker or the 
stronger operation. 

We must distinguish between Real and Personal actions. 

The effect of the prescription (tricennalis exceptio) of a real action 
(vindieatio) is, that the right of the original owner continues but 
is not ground to support an aetion against the mala fide possessor 
or his successor. If the thing passes into the possession of a 
stranger, then the original owner ean recover it from him by 
vindicatio : and if it comes by lawful means into the possession of 
the original owner, the mala fide possessor cannot recover it from 
him by vindieatio, Cod. 7, 39, 8, 1. In the event of bona fides 
there could be no question of prescription ; because then, as we have 
seen, the very jus of the original owner would have been extin- 
guished. In real actions, then, prescription has the weaker operation. 

The effect of prescription in personal actions is controverted. 
Savigny holds that the stronger effect is confined to exceptions 
founded on jus naturale; and that prescription being, as shown by 
its arbitrary numerical character, an institution of jus civile, can 
only have the weaker operation, i.e. leaves untouched the obligatio 
naturalis, § 249. Vangerow, however, seems to show conclusively, 
§ 151, that this doctrine is not tenable. Although the old insti- 
tation of pendency-limitation or, process-prescription, mentioned 
by Gaius, § 104, had only the weaker operation (quia naturale 
debitam manet, Dig. 46, 8, 8, 1), many passages of the Digest 
show that in temporal actions prescription of right to sue had 
the stronger operation, excluding fidejussio, Dig. 46, 1, 37, and 
eonstitutum, Dig. 18, 5, 18, 1, and admitting condictio indebiti, 
Dig. 46, 8, 25 : and there is no reason why ite operation should 
not be equally strong in perpetual actions. Indeed the very object 
of prescription, the setting of some limit to the duration of un- 
certainty, would be defeated if a creditor were allowed to enforce 
by Compensation a claim that for an indefinite period he had not 
attempted to enforce by action. Prescription, then, in all personal. 





558 DE ACTIONIBUS. [rv. $$ 110-113. 


actions has the stronger operation. (English law seems to differ, at 
least so far as it recognizes a debt made irrecoverable by the statute 
of limitations as a sufficient consideration to give legal force to the 
debtor's promise to pay : for, in the absence of all legal obligation, 
a mere moral obligation would admittedly not suffice to bind the 
debtor before the tribunals. Also a lien, or right to detain goods 
till a debt is satisfied (pignus), exists after the remedy by action is 
barred by the Statute of Limitations.) 

Has prescription the same effect upon the grounds of defence 
(Exceptions) that it has upon the grounds of attack (Actions): can 
there be temporis Replicatio as well as temporis Exceptio? This 
depends upon the nature of the exception. Exceptions are 
either unaccompanied by actions or accompanied. An instance 
of the former class is the exceptio rei judicatae when judgment 
in @ vindicatio is given in favour of the possessor. This merely 
denies the right of the plaintiff without affirming the nght of 
the defendant, and therefore cannot be used by the defendant as 
a ground of action: but it may be employed by the defendant as 
a means of defence against the plaintiff or his successor after any 
lapse of years, 

An instance of exception accompanied by action is exceptio 
metus, which belongs to a defendant who may, if he chooses, be a 
plaintiff in an actio metus. 

Savigny holds, § 249, that such exceptions are imprescriptable ; 
but the better opinion seems to be that they have the same duration 
as the nght of action (in the words of the French jurists: Tant 
dure l'aetion, tant dure l'exception): for the reason alleged for 
making exceptions imprescriptible; Is cum quo agitur non habet 
potestatem quando conveniatur, Dig. 44, 4, 5, 6, the inability of 
the person armed with the exception to fix when the matter shall 
be litigated, is inapplicable when the same person is also armed 
with a right of action. Vangerow, § 151. 

$ 111. The rule for the duration of actions is as follows; purely 
restorative or remedial actions (quae rei persecutionem habent) i. e. 
actions where there is neither gain for the plaintiff nor loss for the 
defendant, but the patrimony of each is left at ite original level, 
4 $ 7, are perpetual; that is to say are prescribed in thirty years. 

Penal actions (poenae persecutoriae) both those where there is 
no gain to the plaintiff but possibly a loss to the defendant (indem- 
nifieatory or unilaterally penal actions), as well as those where if 














rv. § 110-113.] ACTIVE AND PASSIVE TRANSMISSION. 659 


judgment passes for the plaintiff there is enrichment for the 
plaintiff and impoverishment for the defendant (bilaterally penal 
actions) are annual. 

Thus the actio doli mali, if brought for complete indemnification, 
was annual: but if the damages were limited to the amount gained 
by the defendant, in which case the action was rei persecutoria, it 
was perpetual, Dig. 4, 3, 28. The formula, in factum and arbi- 
traria, is thus restored by Keller, Civilprocess, § 33: Si paret dolo 
malo Numeri Negidii factum esse, ut Aulus Agerius fundum 
Cornelianum Titio (or, Numerio Negidio) mancipio daret, judex, nisi 
arbitratu tuo Numerius Negidius Aulo Agerio rem restituet, quanti 
ea res erit, Numerium Negidium Aulo Agerio condemna : Si non 
paret absolve. 

When a night of action was limited to a year, this was an 
annus utilis, that is, a year of dies utiles, of days open to juris- 
diction, and on which the plaintiff was not hindered by any insur- 
mountable obstacle, such as absence of plaintiff or defendant, illness 
of plaintiff and inabihty to appoint a procurator, Dig. 44, 3,1. An 
annus utilis, though nominally a year, might really be a much 
longer period. Where a right of action lasted beyond a year, every 
day was counted (tempus continuum), 2 $ 178. From the inde- 
finite duration of annus utilis it is clear that the suggestion, 
Inst. 4, 12, pr., of a connection between the annus of prescription 
and the annus of the praetorship is purely fanciful. 

§ 112. The transmission of an action to the successors of the 
parties is either active transmission, i.e. transmission to the suc- 
cessor of the plaintiff, or passive transmission, 1. e, transmission to 
the successor of the defendant. 

The general rule relating to transmission is, that all actions are 
transmissible, both actively, that is, to the heirs of the plaintiff, 
and passively, that is, to the heirs of the defendant. 

The exceptions are that (1) as to active transmission Vindictive 
actions (of which the type is actio injuriarum), i. e. actions brought 
to avenge wrong to the feelings rather than to repair wrong to the 
property, are not transmitted to the heirs of the plaintiff; and 
that (2) as to passive transmission, penal actions, whether bila- 
terally or unilaterally penal (the latter sometimes called rei per- 
secutoriae ex delicto) are only transmitted against the heirs of the 
defendant so far as the inheritance has been enriched by his wrong. 

Condictio furtiva lies against the heres of the defendant for the 


560 DE ACTIONIBUS. (xv. $$ 110-113. 


whole amount (in solidum) : because, although this action is occa- 
sioned by delict, it 1s not deemed to be delictual or penal, but purely 
restorative (rei persecutoria). 

Penalactions, bilateral and unilateral, when once brought, that 
is, when they have once reached the stage of htis contestatio, 
become capable of both active and passive transmission : Poenales 
autem actiones, si ab ipsis principalibus personis fuerint contestatae, 
et heredibus dantur et contra heredes transeunt, Inst. 4, 12, 1. 

Under Justinian, when the Adstipulator, Sponsor, and Fidepro- 
missor had disappeared, all actions founded on contract were 
passively transmissible in solidum against the heirs of the de- 
fendant ; and it was apparently a mere inadvertence of Tribonian 
to repeat, Inst. 4, 12, 1, the words of Gaius, § 113, which con- 
template the possibility that an action founded on contract should 
be incapable of passive transmission. 

English law is more favourable than Roman law to the plaintiff 
in actions ex delicto in respect of the passive transmission of the 
remedy. 

The executors of a testator and administrators of an intestate have 
the same remedy for injury to the personal property of the deceased 
as he would have had in his lifetime. 

For an injury committed against his real property within six 
months of his death, they may bring an action, within one year after 
his death. And for an injury to either real or personal property 
committed within &x months before the death of the wrong-doer, 
an action may be brought against his executors or administrators 
within six months after they have taken on themselves adminis- 
tration. (Cf. Pollock, Law of Tort, § 111, pro capitali poena, &o. ; 
cf. 8 $ 189.) 


SI REUS ANTE REM IUDICATAM BATISFACIAT ACTORI. 


$ 114. Superest ut dispiciamus, 
si ante rem iudicatam is cum quo 
agitur, post acceptum iudicium 
satisfaciat actori, quid officio iudicis 
conueniat, utrum absoluere, an ideo 
potius damnare, quia iudicii acci- 
piendi tempore in ea causa fuerit, 
ut damnari debeat. nostri praecep- 
iores absoluere eum debere existi- 
mant, nec interesse culus generis 
sit iudicium ; et hoc est quod uulgo 
dicitur Sabino et Cassio placere 


$ 114. We next inquire whether, 
if the defendant before judgment is 
pronounced, but after the formula 
is delivered, satisfies the plaintiff, 
the judex has power to absolve him, 
or must condemn him, because he 
was liable to condemnation when 
the formula was delivered. The 
authorities of my school hold that 
he should be absolved in every 
kind of action; and hence the say- 
ing that Sabinus and Cassius con- 


1v. § 114. ] 


omnila iudicia absolutoria esse. 
|[— de bonae fidei iudiciis 
autem idem sentiunt, quia in eius- 
modi iudiciis liberum est officium 
iudicis. tantumdem | et de i rem 
actionibus putant, quia formulae 
uer|bis id ipeum exprimatur 








OMNIA IUDICIA ABSOLUTORIA. 


561 


sider all actions to involve the 
power of absolution. The other 
school agree in respect of bona fide 
actions, where the judex has more 
discretion, and of real actions 
because there is an express provi- 
sion to this effect in the terms of 


the formula: (as also in respect of 
actiones arbitrariae in personam, 
since they likewise contuin an ex- 
press provision in their formula 


——|quibus-——|—. petentur et 
——|— interdum enim 
| sunt etiam | in 
personam tales actiones in quibus 



































exprimitur —| | actori qu that the judex is not to condemn if 
—— ————| paratus ad the defendant satisfies the plaintiff ; 
actoris ———— jactum but not in respect of actions stricti 
fuerit. juris). 


§ 114. Respecting the power of absolution, Justinian confirmed 
the opinion of the Sabinians, Inst. 4, 12, 2. 

The principle, Omnia judicia esse absolutoria indicates an ex- 
ception to the effects of Litis contestatio. The motive of the effects 
ascribed to Litis contestatio is in general to avert from the plaintiff 
the injurious consequences of the protracted duration of a trial. 
Accordingly if judgment passed in his favour he was put into the 
position he would have occupied if judgment had immediately fol- 
lowed on Litis contestatio. If this rule had been universal no event 
supervening on Litis contestatio could have extinguished the plain- 
tiffs nght to have judgment in his favour: but this in some cases 
would have been unjust to the defendant, as was admitted by all 
juriste in the case of personal actions ex fide bona. 

In personal actions stricti juris it was at first held that what 
would have been an adequate ground for the extinction of the 
plaintiff's claim if it had happened before Litis contestatio, e. g. the 
purely casual destruction of the subject of litigation, was ineffectual 
to save the defendant from condemnation if it happened after Litis 
contestatio. Finally, however, the doctrine prevailed that, in the 
absence of Mora, such an event was effectual for the absolution of 
the defendant, even when it occurred after Litis contestatio. See 
p. 425. 

So in real actions, the purely casual destruction of an object in 
the hands of a bona fide possessor, even when it happened after 
joinder in issue, produced the absolution of the defendant, on the 
ground that impossibilium non est obligatio. It is to be observed, 
however, that the grounds effectual for the absolution of the de- 

00 


562 DE ACTIONIBUS. [rv. $$ 115-137. 


fendant in a real action are limited to those which destroy the 
Obligation engendered by Litis contestatio. The defendant, that is 
to say, is subject to condemnation in spite of usucapion of property 
completed after Litis contestatio, in spite of extinction of servitude 
by non-usus completed after the same date, in spite similarly of 
casual destruction of the subject in the hands of mala fide possessor 
or after mora, and in spite of destruction by the culpa of bona fide 
possessor. 

Subject to this limitation, the rule was universal: omnia judicia 
esse absolutoria: i.e. all classes of action, real as well as personal, 
stricti juris as well as bona fide, whatever the original right of the 
plaintiff, may terminate by a judgment in favour of the defendant 
in consequence of some event (casual destruction of the subject, 
voluntary restitution by the defendant, &c.) subsequent to Litis con- 
testatio. Vangerow, $ 160. Compare what has been stated respecting 
actiones Arbitrariae, $6 47 comm. 

The words in the text ‘quia formulae verbis id ipsum exprima- 
tur’ refer to the direction to the judex in the formula petitoria not 
to condemn the defendant if he restores the thing, which is the 
object of the action, to the plaintiff. 


DE EXCEPTIONIBUS. 


$ 115. Sequitur ut de exceptio- 
nibus dispiciamus. 

$116. Conparatae sunt autem 
exceptiones defendendorum eorum 
gratia cum quibus agitur. saepe 
enim accidit, ut quis iure ciuili 
teneatur, sed iniquum sit eum iu- 
dicio condemnari. 

$116a. Veluti (8) stipulatus 
sim a te pecuniam tamquam cre- 
dendi causa numeraturus, nec nu- 
merauerim ; nam eam pecuniam a 
ie peti posse certum est, dare enim 
te oportet, cum ex stipulatu teneris; 
sed quia iniquum est te eo nomine 
condemnari, placet per exceptionem 
doli mali te defendi debere. 


$ 1165. Item si pactus fuero te- 


$115. We have next to examine 
the nature of Exceptions. 

$ 116. Exceptions are intended 
for the protection of the defendant 
who often is under a liability, say, 
by the civil law when justice forbids 
his condemnation. 


$ 116a. If, for instance, I have 
made you solemnly promise to pay 
me & sum of money, as a pre- 
liminary to my advancing you the 
money, and then never advanced 
it; Ican sue you for the money, 
for you are bound by the promise, 
but it would be iniquitous that you 
should be compelled to fulfil such 
& promise, and therefore you are 
permitted to impeach my claim by 
the exception of Fraud. 

$ 1166. Or if I agree not to de- 





1v. $$ 115-137.] 


cum, ne id quod mihi debeas, a te 
petam, nihilo minus [id ipsum] a te 
petere possum dari mihi oportere, 
quia obligatio pacto conuento non 
tollitur; sed placet debere me pe- 
tentem per exceptionem pacti con- 
uenti repelli. 

$ 117. In his quoque actionibus 
quae (non) in personam sunt, ex- 
ceptiones locum habent. ueluti si 
metu me coegeris aut dolo induxeris, 
ut tibi rem aliquam mancipio da- 
rem; nam si eam rem a me petas, 
datur mihi exceptio per quam, si 
metus causa te fecisse uel dolo malo 
arguero, repelleris. 

$ 117a. Item si fundum litigio- 
sum sciens a non possidente emeris 
eumque a possidente petas, opponi- 
tur tibi exceptio per quam omni 
modo summoueris. 


$118. Exceptiones autem alias 
in edicto pruetor habet propositas, 
alias causa cognita accommodat. 
quae omnes uel ex legibus uel ex 
his quae legis uicem optinent, sub- 
stantiam captunt,uel ex iurisdictione 
praetoris proditae sunt. 

$ 119. Omnes autem exceptiones 
in contrarium concipiuntur, quam 
adfirmat is cum quo agitur. nam 
si uerbi gratia reus dolo malo ali- 
quid actorem facere dicat, qui forte 
pecuniam petit quam non nume- 
rauit, sic exceptio concipitur 8I IN 
EA RE NIHIL DOLO MALO A. AGERII 
FACTVM SIT NEQVE FIAT; item si 
dicaé contra pactionem pecuniam 
peti, ita concipitur exceptio SI INTER 
A. AGERIVM ET N. NEGIDIVM NON 
CONVENIT NE EA PECVNIA PETE- 
RETVR; et denique in ceteris causis 
similiter concipi solet; ideo scilicet 
. quia omnis exceptio obicitur qui- 
dem a reo, sed ita formulae inser- 
iter, ut condicionalem faciat con- 
demnationem, id est ne aliter iudex 
eum cum quo agitur condemnet, 
quam si nihil in ea re qua de agitur 


DE EXCEPTIONIBUS. 


563 


mand a debt, my right to sue the 
debtor continues unimpaired, be- 
cause formless agreement cannot 
extinguish civil obligations, but my 
action would be defeated by an 
exception alleging the agreement. 


$ 117. Real actions also admit 
of exceptions; for instance, if by 
threats of violence or by fraud you 
drove or seduced me to grant a 
thing to you by mancipation; if 
you sue me for it, I am allowed to 
plead intimidation or fraud, and if 
I prove it, I defeat your claim. 


$ 117a. Or if you knew an estate 
was a subject of litigation, and 
bought it of a person not in posses- 
sion, when you claim it of a person 
in possession you are defeated by 
an exception. 

$ 118. Exceptions are either pro- 
vided by the edict, or, on cause 
Shown, are granted by the praetor, 
and are either founded on law or 
something equivalent to law, or on 
the praetor's judicature. 


$ 119. Exceptions take the form 
of & supposition opposite to the 
allegation of the defendant; if, for 
example, the defendant imputes 
fraud to the plaintiff in that he sues 
for money which he never advanced, 
the exception is thus expressed: 
* [f in that matter there was and is 
no fraud of Aulus Agerius.’ Again, 
if he allege an agreement not to 
claim the money, the exception is 
thus formulated: ‘If Aulus Agerius 
and Numerius Negidius did not 
agree that the money should not be 
demanded ;’ and so in other cases. 
For every exception is alleged by 
the defendant but is inserted in the 
formula as a (second) condition of the 
condemnation : that is, the judex is 
instructed not to condemn the de- 
fendant unless (firstly, the existence 


002 





564 


dolo actoris factum sit; item ne 
aliter iudex eum condemnet, quam 


si nullum pactum conuentum de 


non petenda pecunia factum fuerit. 


$ 120. Dicuntur autem excep- 
tiones aut peremptoriae aut dila- 
toriae. 

$ 121. Peremptoriae sunt quae 
perpetuo ualent, nec eultari pos- 
gunt, ueluti quod metus causa, aut 
dolo malo, aut quod contra legem 
senatusue consultwm factum est, 
aut quod res iudicata est uel in 
iudicium deducta est, item pacti 
conuenti quod factum est, ne om- 
nino pecunia peteretur. 

$ 122. Dilatoriae sunt excep- 
tiones quae ad tempus ualent, 
ueluti illius pacti conuenti quod 
factum est uerbi gratia, ne intra 
quinquennium peteretur; finito 
enim eo tempore non habet locum 
exceptio. cui similis exceptio est 
litis diuiduae et rei residuse. nam 
si quis partem rei petierit et intra 
eiusdem praeturam reliquam par- 
tem petat, hac exceptione sum- 
mouetur quae appellatur litis diui- 
duae; item ei is qui cum eodem 
plures lites habebat, de quibusdam 
egerit, de quibusdam distulerit, ut 
ad alios iudices eant, si intra eius- 
dem praeturam de his quas distu- 
lerit, agat, per hane exceptionem 
quae appellatur rei residuae, sum- 
mouetur. 


$1283. Obseruandum est autem 

ei cui dilatoria obicitur exceptio, 
ut differat actionem; alioquin si 
obiecta exceptione egerit, rem per- 
dit; non enim post illud tempus 
quo integra re (eam) euitare po- 
terat, adhuc ei potestas agendi 
superest re in iudicium deducta 
et per exceptionem perempta. 


DE ACTIONIBUS. 


[1v. $$ 115-137. 


of the plaintiffs right is proved, 
and unless, secondly, no counter- 
vailing right of the defendant 18 
proved: e.g.) there is no fraud to 
vitiate the title of the plaintiff, or 
there was no agreement where- 
by his claim was informally re- 
leased. 

$ 120. Exceptions are either per- 
emptory or dilatory. 


$121. Peremptory exceptions are 
obstructions of unlimited duration 
and insurmountable, as the plea of 
intimidation, fraud, contravention of 
law or senatusconsultum, previous 
decision or litigation, or formless 
agreement never to sue. 


$ 122. Diletory exceptions are 
merely temporary obstructions, such 
as an agreement that a debt shall 
not be sued for within five years, 
for in five years the exception ceases 
to be pleadable. "There are similar 
exceptions against division or separ- 
ation of actions. After suing for 
part of a debt if a man sue for the 


remainder in the same praetorship, 


he is by the exception 
against division of actions. Or, 
when a man who has several claims 
against the same defendant brings 
some actions and postpones others 
in order to come before & new 
panel of judices, if within the 
same praetorship he bring any of 
the postponed actions, he is met by 
the exception against separation of 
actions. 

§ 123. A plaintiff liable to a 
dilatory exception should be careful 
to postpone his action, for the ex- 
ception once pleaded is fatal; and 
although, if the matter had never 
been mooted, time would have re- 
moved the obstacle, yet it will not 
now, as his right has been litigated 
and extinguished. 





1v. $$ 115-137.] 


$ 124. Non solum autem ex tem- 
pore, sed etiam ex persona dila- 
toriae exceptiones intelleguntur, 
quales sunt cognitorlae: ueluti si 
is qui per edictum cognitorem dare 
non potest, per cognitorem agat, 
uel dandi quidem cognitoris ius 
habeat, sed eum det cui non licet 
cognituram suscipere. nam si 
obiciatur exceptio cognitoria, si 
ipse talis erit, ut ei non liceat 
cognitorem dare, ipse agere potest ; 
si uero cognitori non liceat cogni- 
turam suscipere, per alium cogni- 
torem aut per semet ipsum liberam 
habet agendi potestatem, et tam 
hoc quam illo modo euitare ( potest) 
exceptionem ; quodsi dissimulaue- 
rit et per cognitorem egerit, rem 
perdit. 

$ 125. Sed peremptoria quidem 
exceptione si reus per errorem non 
fuerit usus, in integrum restituitur 
adiciendae exceptionis gratia; dila- 
toria uero si non fuerit usus, an in 
integrum restituatur, quaeritur. 


DE REPLICATIONIBUS. 


565 


$ 124. Irrespective of time, per- 
sonal incapacities produte dilatory 
exceptions, such as those which re- 
late to the office of cognitor, for 
some persons are disabled by the 
edict from appointing a cognitor, 
and others are disabled from dis- 
charging the office of cognitor. A 
principal disabled from appointing 
& cognitor can sue in his own name, 
and if one person is disabled from 
acting as cognitor, the principal can 
employ another, or sue in his own 
name, and in either way avoid the 
exception; but if he disregard the 
incapacity and sue by cognitor, he 
loses his action and has consumed 
his remedy. 


§ 125. Ifa peremptory exception 
be inadvertently omitted, the de- 
fendant is relieved by Restitution, 
and allowed to amend his defence: 
whether the same is true of a 
dilatory exception, is a matter of 
controversy. 


DE REPLICATIONIBUS. 


§ 126. Interdum euenit, ut ex- 
ceptio quae prima facie iusta uidea- 
tur, inique noceat actori. quod 
cum accidat, alia adiectione opus 
est adiuuandi actoris gratia; quae 
adiectio replicatio uocatur, quia per 
eam replicatur atque resoluitur uis 
exceptionis. nam si uerbi gratia 
pectus sum tecum, ne pecuniam 
quam mihi debes, & te peterem, 
deinde postea in contrarium pacti 
sumus, id est ut petere mihi liceat, 
et, si agam tecum, excipias tu, ut 
ita demum mihi condemneris, 8i 
NON CONVENERIT NE EAM PECVNIAM 
PETEREM, nocet mihi exceptio pacti 
conuenti; namque nihilo minus hoc 
uerum manet, etiamsi postea in 
contrarium pacti sumus; sed quía 


$ 126. Sometimes an exception, 
which in the absence of counter 
allegations seems just to the defen- 
dant, is unjust to the plaintiff, and 
then, to protect the plaintiff, the 
praetor adds to the instructions a 
clause called Replicatio, because it 
parries and counteracts the ex- 
ception. If, for instance, after we 
agreed that I should not sue you 
for a debt, we agreed that I might 
sue ; if, when I sue, you plead the 
agreement that I should not sue, 
you bar my claim, for your alle- 
gation is true; but, as it would be 
unjust that I should be prevented 
from recovering, I am allowed to 
reply by pleading the subsequent 
agreement, thus: ‘If there was no 











566 


iniquum est me excludi exceptione, 
replicatio mihi datur ex posteriore 
pacto hoc modo 81 NON POSTEA 
CONVENIT YT MIHI EAM PECVNIAM 
PETERE LICEBET. 

$ 126 a. Item si argentarius pre- 
tium rei quae in auctionem uenerit, 
persequatur, obicitur ei exceptio, 
ut ita demum emptor damnetur, 
8I EI RES QVAM EMERIT, TRADITA 
EST; et est lusta exceptio; sed si 
in auctione praedictum est NE ANTE 
EMPTORI (RES) TRADERETVE QVAM 
SI PRETIVM SOLVERIT, replicatione 
tali argentarius adiuuatur AvT 8 
PRAEDICTVM EST, NE ALITER EMP- 
TORI RES TRADERETVR, QVAM SI 
PRETIVM EMPTOR SOLVERIT. 

§ 127. Interdum autem euenit, 
ut rursus replicatio quae prima 
facie iusta sit, inique reo noceat. 
quod cum accidat, adiectione opus 
est adiuuandi rei gratia, quae dupli- 
catio uocatur. 

$ 128. Et si rursus ea prima 
facie iusta uideatur, sed propter 
aliquam causam inique actori no- 
ceat, rursus adiectione opus est 
qua actor adiuuetur, quae dicitur 
triplicatio. 

$129. Quarum omnium adiec- 
tionum usum interdum etiam ul- 
terius quam diximus uarietas nego- 
tiorum introduxit. 


‘DE ACTIONIBUS. 


[rv. $$ 115-137. 


subsequent agreement that I might 
sue.’ 


§ 126 a. Soifa banker sue for the 
price of goods sold by auction, he 
may be met by the plea that they 
were never delivered, and this is a 
valid exception. But if it was a 
condition of the sale, that the goods 
should not be delivered to the 
purchaser before payment of the 
purchase-money, the banker is per- 
mitted to insert the Replicatio: ‘or 
if it was a condition of the sale that 
the goods should not be delivered 
till the price was paid.’ 

§ 127. Sometimes a Replicatio, 
though just on the face, is unjust 
to the defendant; and then, to pro- 
tect the «defendant, the praetor 
adds a clause called Duplicatio 


 (Rejoinder). 


$ 128. Again, if this, though just 
in appearance, is unjust to the 
plaintiff, he is protected by another 
clause called Triplicatio (Surre- 
joinder). 


$129. And sometimes further 
additions are required by the multi- 
plicity of ciroumstances by which 
dispositions may be successively or 
contemporaneously affected (Re- 
butter and Surrebutter). 


DE PRAESORIPTIONIBUS. 


§ 130. Videamus etiam de prae- 
scriptionibus quae receptae sunt 
pro actore. 


$131. Saepe enim ex uns eadem- 
que obligatione aliquid iam prae- 
stari oportet, aliquid in futura 
praestatione est: ueluti cum in 
singulos anmos uel menses certam 
pecuniam stipulati fuerimus ; nam 
finitis quibusdam annis aut men- 
sibus huius quidem temporis pecu- 


$ 130. We next proceed to notice 
the Praescriptio, a clause de- 
signed for the protection of the 
plaintiff. 

§ 131. One and the same obliga- 
tion may entitle us to receive pay- 
ment of one sum at present and 
another sum in future. When an 
annual or monthly payment of a 
certain sum is stipulated, on the 
expiration of a year or month we 
are entitled to present payment for 


xv. $$ 115-137.] 


piam praestari oportet, futurorum 
autem annorum sane quidem obli- 
gatio contracta intellegitur, prae- 
statio uero adhuc nulla est. si 
ergo uelimus id quidem quod prae- 
stari oportet, petere et in iudicium 
deducere, futuram uero obligationis 
praestationem in integro relinquere, 
necesse est ut cum hac praescrip- 
tione agamus EA RES AGATYB CVIVS 
REI DIES FVIT; alioquin si sine hac 
praescriptione egerimus, ea scilicet 
formula qua incertum petimus, 
cuius intentio his uerbis concepta 
est QVIDQVID PARET N. NEGIDIVM 
A. AGERIO DARE FACERB OPORTERE, 
totam obligationem, id est etiam 
futuram in hoc iudicium deducimus, 
et quae ante tem|pus obligatio——| 





$ 131a. Item si uerbi gratia ex 
empto agamus, wt nobis fundus 
mancipio detur, debemus hoc modo 
praescribere EA RES AGATVE DE 
FVNDO MANCIPANDO, ut postea, si 
uelilmus uacuam possessionem nobis 
tradi, trad—| |—sumus, to- 
tius illus iuris obligatio illa in- 
cerita actione QVIDQVID OB EAM 
REM N. NEGIDIVM A. AGERIO DARE 
FACERE OPORTET, per intentionem 
consumitur, ut postea nobis agere 
uolentibus de uacua possessione tra- 
denda nulla supersit actio. 





$ 132. Praescriptiones autem ap- 
pellatas esse ab eo quod ante for- 
mulas praescribuntur, plus quam 
manifestum est. 

$ 133. Sed his quidem tempori- 
bus, sicut supra quoque notauimus, 
omnes praescriptiones ab actore 
proficiscuntur. olim autem quae- 


DE PRAESCRIPTIONIBUS. 


567 


the term expired, and to future pay- 
ment for the future terms. If, then, 
we intend to claim and sue for 
the sum at present due, without 
bringing the future payments into 
litigation, we must employ the 
Praescriptio: ‘Let the trial relate 
exclusively to the right of present 
payment.’ Otherwise, if we sue 
without this Praescriptio, the in- 
definite Intentio, ‘Whatever it be 
proved that Numerius Negidius 
ought to convey to or perform for 
Aulus Agerius,’ brings our whole 
right to future as well as to present 
payment before the judex, and, what- 
ever payment may be due in future, 
we only recover what is due at the 
commencement of the suit, and are 
barred from any subsequent ac- 
tion. 

$131a. So if we sue upon a 
purchase for the conveyance of land 
by mancipation, we must prefix 
the Praescriptio: ‘Let the tral 
relate exclusively to the mancipa- 
tion of the land,’ in order that sub- 
sequently, when vacant possession 
is to be delivered, we may be able 
to sue again on purchase for 
delivery of possession ; as, with- 
out this Praescriptio, all our right 
under that title is included in the 
uncertain Intentio, ‘Whatever on 
that ground Numerius Negidius 
ought to convey to or perform for 
Aulus Agerius,’ and is exhausted 
by the commencement of the first 
action; so that afterwards, when 
we want to sue for the delivery of 
vacant possession, we have no right 
of action. 

§ 132. The Praescriptio is named 
from preceding the formula, as 
hardly needs to be stated. 


§ 133. At present, as I observed, 
all praescriptions are inserted by 
the plaintiff; formerly some used 
to be employed by the defendant, 





568 


dam et pro reo opponebantur, qualis 
illa erat praescriptio EA RES AGA- 
TVR, 8! IN BA RE PRAEIVDICIVM 
HEREDITATI NON FIAT, quae nunc 
in speciem exceptionis deducta est, 
et locum habet, cum petitor here- 
ditatis alio genere iudicii prae- 
iudicium hereditati faciat, ueluti | 
cum singulas res pefat; est enim 
iniquum per unius rei— 
(23 uersus in C legi nequeunt) 

—— —CI. 


$ 134. . . intentione formulae 
det—m est, cui dari oporteat; et 
sane domino dart oportet quod 
geruus stipulatur; af in praescrip- 
tione de facto quaeritur, quod se- 
cundum naturalem significationem 
uerum esse debet. 

$ 135. Quaecumque autem dixi- 
mus de seruis, eadem de ceteris 
quoque personis quae nostro iuri 
subiectae sunt, dicta intellegemus. 

$136. Item admonendi sumus, 
si cum ipso agamus qui incertum 
promieerit, ita nobis formulam esse 
propositam, ut praescriptio inserta 
sit formulae loco demonstrationis 
hoc modo IVDEX ESTO. QVOD A. 
AGERIVS DE N. NEGIDIO INCERTVM 
STIPVLATVS EST, CVIVS REI DIES 
FVIT, QVIDQVID OB EAM REM NX. 
NEGIDIVM A. AGERIO DARE FACERE 
OPORTET et reliqua. 


$ 137. Si cum sponsore aut 
fideiussore agatwr, praescribi solet 
in persona quidem sponsoris hoo 
modo EA RES AGATVR, QVOD A. 
AGERIVS DE L. TITIO INCERTVM 
STIPVLATVS EST, QVO NOMINE N. 
NEGIDIVS SPONSOR EST, CVIVS REI 
DIES FVIT, in persona uero fide- 
iussoris KA RES AGATVR, QVOD N. 
NEGIDIVS PRO L. TITIO INCERTVM 
FIDE 8VA ESSE IVSSIT, CVIVS REI 


DE ACTIONIBUS. 


[1v. $$ 115-137. 


for instance, the Praescriptio: ‘Let 
this question be tried if it does not 
prejudice the question of succes- 
sion ;’ which clause is now trans- 
formed into an exceptio, and is 
employed when the claimant of a 
succession brings another action 
which prejudges the right of suc- 
cession; as, for instance, if he sues 
for a part of the heritage; for it 
would be unjust [to make the de- 
cision of an action respecting an 
entire inheritance a mere corollary 
of a decision respecting a less 
important issue. | 

$ 184. If an action is brought 
on & contract made by a slave, the 
intention names the person entitled 
to recover, that is, the master; and 
the prescription gives the true 
history of the facts relating to the 
contract. 

$135. What has been said of 
slaves applies to all persons subject 
to a superior. 


¢ 


§ 136. We must further remark, 
that when the principal promisor 
of an uncertain sum is sued, the 
formula contains a Praescriptio in 
place of a Demonstratio, thus: 
* Let CD be judex. Whereas Aulus 
Agerius stipulated an uncertain sum 
from Numerius Negidius, whatever 
IN EXCLUSIVE RESPECT OF THE 
SUM DUE AT PRESENT on that 
ground Numerius Negidius ought 
to convey to or perform for Aulus 
Agerius, &c. 

§ 137. When a sponsor or fide- 
jussor is sued, in the case of the 
sponsor the Praescriptio is as fol- 
lows: ‘LET THE TRIAL on the Sti- 
pulation by Aulus Agerius that an 
uncertain sum should be peid by 
Lucius Titius, of which stipulation 
Numerius Negidius was sponsor, 
BE CONFINED TO THE PAYMENT DUE 
AT PRESENT;' in the case of a 
fidejussor: ‘ LET THE ACTION on the 











rv. §§ 115-137.] NEGATION AND COLLISION. 569 


DIES FVIT; deinde formula subi- guaranty of Numerius Negidius 

citur. that an uncertain sum should be 
paid by Lucius Titius, BE CONFINED 
TO THE PAYMENT DUE AT PRESENT ;’ 
and then follows the rest of the 
formula. 


An explanation of the nature of Exceptions requires to be based 
on a review of the general incidents of litigation. 

In every action there is some contention, allegation, or averment 
of a plaintiff which is met or encountered by some contention, 
allegation, or averment of a defendant. 

The contention of the plaintiff (intentio) is the assertion of some 
right of the plaintiff: e.g. in a real action, the assertion of do- 
minion (si paret illam rem Auli Agerii esse): in a personal action, 
the assertion of an obligation (si paret Numerium Negidium Aulo 
Agerio illam rem dare facere oportere) In an action with a 
formula in factum concepta there is an implicit or indirect assertion 
of a right, although explicitly and directly the intentio only asserts 
the fact which forms the title on which such right is founded. 
In the wording of the formula the nght of the plaintiff appears 
as an hypothesis; because the formula or instruction to the judex 
is a hypothetical command, expressed in a sentence of which the 
intentio forms the antecedent or protasis, and the condemnatio the 
consequent or apodosis. 

The contention of the defendant is either 

(A) a NEaaTION of the alleged right of the plaintiff, or 

(B) an affirmation of a coLLIDING, countervailing right of the 
defendant whereby the alleged right of the plaintiff is counterpoised 
and counteracted. 

The denial of the plaintiff's right again admite of division : 

1. It is either & simple and absolute negation of the plaintiff's 
right: an assertion of its non-existence even in the past: an 
affirmation of ite original nullity ; or 

a. A qualified or relative negation. Admitting or assuming that 
it once existed, it is a negation of its present existence : an affirma- 
tion of its subsequent destruction, nullification, or avoidance. 

Accordingly a defendant had three lines of defence : 

I. The assertion of the original NULLITY of the plaintiff's 
right. 

This might be either a denial (traverse) of the fact, whether a 





670 DE ACTIONIBUS. [1v. §§ 115-137. 


disposition or a trespass, on which the plaintiff’s nght was alleged 
to be founded (general issue of English law). 

Or the denial of the law by which such a right was said to be 
annexed to such a fact (demurrer of English law). The question 
whether in the formulary system a pure issue of law was decided 
by the praetor in jure (denegatio actionis, when the demurrer was 
sustained ; datio actionis, when it was overruled) without reference 
to a judex, is immaterial to our present purpose, which is merely 
an exhaustive view of the various modes of defence open to a 
defendant. 

Or it might be an admission of the fact alleged with an allegation 
of a further fact whereby the efficacy of the admitted fact to found 
a right was avoided. E.g. the averment of the infancy or lunacy 
of a party to a disposition (confession and avoidance of English 
law, producing a plea in justification). 

II. The averment of a subsequent nullification or EXTINCTION of 
the plaintiff’s right, admitted to have previously existed (confession 
and avoidance, i. e. confession not only of a fact, as above, but of a 
right, with an averment of its subsequent abolition, producing a plea 
in discharge) e. g. the averment of solutio, acceptilatio, novatio. 

III. The objection of a colliding right of the defendant, whereby 
the right of the plaintiff is not avoided or extinguished but 
counterworked or restrained from operation: e.g. resistance to 
an alleged right of & father-in-law by putting forward & counter 
right of a husband : or arrest of the exercise of the father's nghts 
by confronting them with those of the mother (confession of a 
fact or right and, not avoidance but, couNTERACTION). This third 
mode of defence is called Exceptio. Accordingly exceptio may be 
rendered a Counteractive or obstructive, as opposed to a Negative 
or destructive, plea. 

The allegation of an exceptio does not preclude the defendant 
from contesting the intentio: Non utique existimatur confiteri de 
intentione adversarius, quocum agitur, qui exceptione utitur, Dig. 
44, 1, 9, and the intentio must be proved by the plaintiff before 
the defendant is called upon to prove the exceptio, Cod. 8, 85, 9: 
so that, instead of confession and counteraction, the exception 
should be described as a supposition or assumption and counter- 
action, of the plaintiff's right. 

I. Examples of the first line of defence are, in a real action, the 
negation of the traditio on which a plaintiff founds his claim of 


1v. $$ 115-137.] NULLITY. 571 


/ 

dominion: in a personal action, negation of the contract or tort 
on which the plaintiff founds his claim of obligation: in either 
real or personal action, avoidance of the title alleged by the plaintiff 
by allegation of the infancy or lunacy of an alienor or contractor. 
In hereditatis petitio, the original nullity of a will is pleaded, or 
the plaintiff’s testamentary title is avoided, by averment of the 
preterition by the testator of a suus heres. A title by contract is 
avoided by indicating a limitation in respect of time or place or 
condition or alternative. 

In general the grounds of the original nullity of a disposition 
are either : 

(a) Want of the conditions necessary to its validity, whether 
from absence of the personal qualities required in the disposer, or 
from absence of the intention which is of the essence of a dis- 
position, or of any other of the essentialia negotii, or from absence 
of the prescribed form in which an intention is required to be 
declared. 

(6) Or prohibition of the disposition by positive law. 

The antagonism of the legislator to a kind of disposition expressed 
itself in various ways: 

(1) He imposed diffieult or inconvenient forms as conditions of 
ite validity. Such a requirement is perhaps what Ulpian, 1, 1, deno- 
minates an imperfecta lex: it is exemplified by lex Cincia. 

(2) He prohibited a disposition but, instead of declaring it invalid, 
imposed a penalty on the person by whom it was enforced. This 
was the method of lex Furia testamentaria, which Ulpian quotes as 
an example of minus quam perfecta lex, 2 $ 225, comm. 

(3) He prohibited a disposition but only struck it with a partial 
Invalidity: he allowed it to create a valid right, but made such 
right subject to be deprived of its efficacy by Exceptio. Such an 
exceptio might be of the weaker class, only barring obligatio civilis, 
e. g. exceptio Se. Macedoniani 8 $6 90-91 comm. ; or of the stronger 
class, barring both civilis and naturalis obligatio; e. g. exceptio Se. 
Velleiani, 8 §§.110-127 comm. 

(4) He declared the prohibited disposition to be entirely invalid. 
Such an ordinance is called by Ulpian perfecta lex, and is exem- 
plified in lex Falcidia, 2 § 227. 

Informality, e.g. exheredation by preterition, donation without 
record (insinuatio) produces Nullifieation. This was an almost 
universal rule, the only instance to the contrary being the lex 


572 DE ACTIONIBUS. [1v. $$ 115-137. 


Cincia, a neglect of whose forms founded exceptio instead of nul- 
lification. 

The second of these paths of prohibition ceased to be trodden 
after an interpretative law of Theodosius II. A law prohibiting 
municipal senators (curiales) from the management (procuratio) of 
other persons’ estates had been evaded by means of simulated 
leases (conductio). In consequence of this, Theodosius enacted, in 
substance, that any prohibitive law, even though it contained 
no express terms of nullification, should be interpreted to be lex 
perfecta; and that any simulated dispositions, whereby a law was 
attempted to be evaded, should be null and void: Nullum con- 
tractum inter eos videri volumus subsecutum qui contrahunt, lege 
contrahere prohibente ...Sed et si quid fuerit subsecutum ex eo 
vel ob id quod interdicente lege factum est illud quoque cassum 
atque inutile esse praecipimus, Cod. 1, 14, 5, 81. So in English law 
a contract is by implication forbidden and void, when a statute, 
without saying that the contract shall be void, inflicts a penalty 
on the maker; for a penalty implies a prohibition. Smith, Mer- 
cantile Law, p. 522. This rule will not apply where a statute has 
expressly provided some other consequence inconsistent with the 
nullity of the disposition. E.g. the Se. Macedonianum and Sc. 
Velleianum render the dispositions which contravene them liable 
to Exceptio, which is inconsistent with nullification. 

2. Examples of the second line of defence are in real action 
the averment of a subsequent loss of dominion by dereliction or 
usucapion or alienation, or loss of servitus by non-usus: in here- 
ditatis petitio the avoidance of a valid will by agnatio postumi or 
by the execution of a later will: in personal action the extinction 
of a debt by solutio, acceptilatio (formal release), novatio. 

In general, the avoidance of a right may either be produced by 
the very disposition by which the right is originated, viz. by the 
fulfilment of a resolutive condition which it contains: or by some- 
thing external, e. g. adjudication, when res judicata operates not as 
a counteractive but as an extinctive plea, 8 § 180: or by a con- 
trary disposition, e.g. dereliction of property, repudiation of the 
delatio of legatum or hereditas. In respect of contrary dispo- 
sitions the general rule obtains that to produce complete invalidity 
the second disposition must be of similar form to the first; other- 
wise it only produces incomplete invalidity (exceptio, a counteractive 
plea): Nihil tam naturale est, quam eo genere quidque dissolvere, 








1v. § 115-137. ] EXTINCTION. 573 


quo colligatum est: ideo verborum obligatio verbis tollitur: nudi 
consensus obligatio contrario consensu dissolvitur, Dig. 50, 17, 35. 
Thus, a stipulation is extinguished by a formal release (accepti- 
latio) but only counteracted by an informal release (pactum de 
non petendo). Furtum and injuria were extinguished by nudum 
pactum, in spite of the dissimilanty of disposition and tort: offence 
and reconciliation, as Kuntze observes, § 632, being regarded as 
contraries. Quaedam actiones per pactum ipso jure tolluntur, ut 
injuriarum item furti, Dig. 2, 14, 17, 1. An informal release 
followed by an informal revocation (pactum de petendo) is not 
extinguished but only counteracted, 1 $ 126, and Dig. 2, 14, 27, 2. 

Let us consider what is the effect when a valid disposition is 
followed not by a contrary disposition but by some other circum- 
stance of an adverse or inconsistent character. Some jurists laid 
down a rule that original valid dispositions, if followed by a 
change of circumstances to a state in which such a disposition 
could not have had a valid inception, are thereby invalidated : 
Etiam ea quae recte constiterunt, resolvi putant, cum in eum 
casum reciderunt, a quo non potuissent consistere, Dig. 45, 1, 98, 
pr. E.g. marriage was dissolved when one of the parties subse- 
quently lost civitas or libertas. But there are exceptions to the 
rule: Non est novum ut quae semel utiliter constituta sunt, durent, 
licet ille casus extiterit, a quo initium capere non potuerunt, Dig. 
45, 1, 140, 2. Exstingui obligationem, si in eum casum inciderit, 
& quo incipere non potest, non...in omnibus verum est, Inst. 2, 
20,14. E.g. marriage is not dissolved by the lunacy of one of the 
parties. Similarly a testament loses its validity when a testator 
loses civitas or libertas, but not when he becomes a lunatic. It 
seems then that no general rule can be applied. 

A change in the opposite direction, i.e. from circumstances in- 
consistent, to circumstances consistent, with a disposition, will not, 
as a general rule, validate the disposition, or produce what is called 
convalescence: Quod initio vitiosum est, non potest tractu tem- 
poris convalescere, Dig. 50, 17, 29. Omnia, quae ex testamento 
proficiscuntur, ita statum eventus capiunt, si initium quoque sine 
vitio ceperint, Dig. 50, 17, 201. Regula Catoniana sic definit, 
quod, si testamenti facti tempore decessisset testator, inutile foret, 
id legatum, quandocunque decesserit, non valere, Dig. 84, 7, 1, pr. 
But though this applied to legacies, it was not true of institutions 
of a successor (hereditas), ib. 8, nor of all other dispositions. E.g. 


574 DE ACTIONIBUS. [rv. $$ 115-137. 


when a non-proprietor alienes and subsequently becomes proprietor, 
the alienation, originally invalid, convalesces, and the purchaser 
becomes proprietor without a new tradition, Dig. 41, 8, 42. 

The removal of an exception, e.g. the voluntary ratification of 
a contract that was originally vitiated by force or fraud, has prac- 
tically the same effects as convalescence ; but cannot properly be 
called convalescence, because here the disposition is not originally 
null and void, but only liable to counteraction. Accordingly in 
such a case the plaintiff's right would require to be enforced by 
Replicatio. 

3. Exceptions or counteractive pleas, which are the defendant's 
third means of defence, are either based on the substantive code or 
on the code of procedure. 

(a) Examples of exceptions based on the code of procedure are : 
exception to the jurisdiction of the court (exceptio fori incompe- 
tentis): the objection to a minor issue being tried, while a con- 
nected major issue from which it cannot be separated is undecided 
(exceptio praejudicialis): objection to the appointment of this pro- 
curator by the plaintiff (exceptio cognitoria, procuratoria). 

(6) Examples of exceptions based on the material code are : 

In the department of domestic or family law, the exception pro- 
tecting maternal rights against paternal; i.e. protecting the right 
of a mother to educate her infant children against her husband who 
seeks by the interdict de liberis exhibendis or ducendis to enforce 
the prerogatives of patria potestas, Dig. 48, 80, 8, 5 : or protecting 
marital rights against paternal rights ; 1. e. protecting the right of 
the husband to the society of the wife against her father who 
endeavours by exercising his patria potestas to break up a united 
household, Dig. 48, 80, 1, 5. 

In the department of reallaw the defendant in a vindicatio by 
putting forward the exceptio rei venditae et traditae may counter- 
poise the plaintiff's quiritary right by objecting his own bonitary 
right, Dig. 21, 8, 1, 2: or he may allege as a counteracting right 
against the plaintiff's dominion a jus in re, e.g. pignus, Dig. 10, 
3, 6, 9, or superficies, Dig. 48, 18, 1, 4. In the actio Publiciana 
when the purchaser from a non-proprietor endeavours to recover 
the thing from the true proprietor, the defendant may oppose 
ownership to bona fide acquisition of possession by putting forward 
the exceptio dominii: Si ea res possessoris non sit, Dig. 6, 2, 17, 
said to be the only exception which in form alleges a right of the 








1v. $$ 115-137.] COUNTERACTION. 575 


defendant, whereas all other exceptions, though they too are all 
virtually and in effect allegations of & right, in external form are 
allegations of a fact. Cf. 2 §§ 40-61 comm. 

In the department of obligation the defendant's counteractive 
plea may be an allegation of Force or Error or Formless release. 
Force and Error, as we have seen, p. 22, do not deprive a disposi- 
lion of validity, but produce an independent right of redress. 

Although Exceptio is always the allegation of a right of the 
defendant, the right which it alleges, though in other respects of 
the same nature as the right of a plaintiff, is not always sufficiently 
energetic to form & greund on which an action might be main- 
tained. We have an instance of this inferior energy in the obli- 
gatio naturalis which is generated by nudum pactum, of which 
we read: Igitur nuda pactio obligationem non parit sed parit 
exceptionem, Dig. 2, 14, 7, 4. 

The collision of the rights of the plaintiff and defendant, as ex- 
pressed in the intentio and exceptio arises in the majority of cases 
from the opposition of equity (aequitas) to law, jus strictum, or of 
jus praetorium to jus civile. 

Instances of exceptio founded on jus praetorium are: Exceptio 
doli, metus, pacti conventi, $ 116, hypothecaria, Jurisjurandi. 

It is, however, erroneous to suppose, as was done in the first 
edition, that, anomalies disregarded, exceptio is always a plea based 
on the equitable or praetorian code. This is contrary to the state- 
ment of Gaius, § 118, that exceptio is often based on jus civile, and 
refuted by the following examples of exceptions based on civil law : 
exceptio dominii, the allegation of civil dominion by the true 
proprietor who is defendant in an actio publiciana brought by a 
purchaser from a non-proprietor: exceptio legis Plaetoriae, the al- 
legation of minority. [The lex Plaetoria did not make minors 
incapable of contracting, but treated their inexperience as a ground 
for extraordinary relief: otherwise minority, like infancy, would have 
made a contract null and void, and its averment would not have fallen 
as an exceptio under the third mode of defence, but, as à negation, 
under the first, like the averment of infancy, 1 $$ 197—200 comm. | : 
exceptio legis Cinciae, Frag. Vat. 266, 310, protecting a donor: 
exceptio legis Juliae, Inst. 4, 14, 4, protecting an insolvent who has 
made cessio bonorum : exceptio Sc. Macedoniani, protecting filius- 
familias against usurers: exceptio Sc. Velleiani, protecting women 
from the consequences of intercessio ; exceptio Sc. Trebelliani, pro- 





576 DE ACTIONIBUS. [1v. $$ 115-137. 


tecting an heir who is merely a trustee to convey the inheritance 
to a beneficiary from the pursuit of the creditors, Dig. 15, 2, 1, 8, see 
2 § 258. 

Let us examine the meaning of ipsum jus as it occurs in the 
opposition of actio ipso jure nulla (a right avoided by a destructive 
plea) and actio ope exceptionis infirmata (a right counteracted by 
an obstructive plea) or other equivalent expressions. 

Ipsum jus sometimes denotes jus civile as opposed to jus prae- 
torium, e.g. in the phrase actiones quae in aliquem aut ipeo jure 
competunt aut a praetore dantur, 4 $ 112: but this cannot be ite 
signification here; for the opposition between destruction and 
obstruction, avoidance and counteraction, is irrespective of the 
opposition between jus civile and jus praetorium. In a case of 
avoidance, the plaintiff's claim may be derived not from jus civile 
but from jus praetorium, e.g. in actio constitutoria, § 71 comm., 
hypothecaria, publiciana : and in a case of counteraction the defend- 
ant’s plea, as we have seen, may be derived not from aequitas 
but from jus civile. 

Ipsum jus as contrasted with exceptio denotes the totality of 
the conditions comprehended in the intentio—the totality of the 
elements, positive and negative, that constitute the plaintiff's right : 
in which definition positive elements are the conditions which call 
a right into existence; negative elements are the absence of any 
circumstance which could extinguish an existent right or dismiss it 
into non-existence. Exceptio on the contrary denotes something 
external to the sphere of the conditions of existence of the plaintiff’s 
right; denotes the existence of an independent adverse nght of 
the defendant. Actio ipso jure nulla will denote a right null and 
void by the conditions contemplated in the intentio and commonly 
expressed by the word oportere: actio exceptionis ope infirmata a 
right defeated by conditions external to the intentio. The words: 
ipso jure, then, might be paraphrased by the words: si intentionem 
tentum spectes; or treated as equivalent to: ipsius jure or actoris jure. 

The first mode of defence mentioned above denies the existence of 
one of the positive constituent elements of the plaintiff's right. 

The second mode denies the existence of one of the negative 
constituent elements of the plaintiff's right. 

The third mode alleges a second right, vested in a different 
person, and generated by a title external to the sphere of the 
conditions which constitute the right of the plaintiff. 


rv. $$ 115-137.] NEGATION, COUNTERACTION. 577 


In some cases the partition which separates avoidance from 
counteraction will be extremely thin, and will consist in some 
arbitrary appointment of positive law. E.g. litis contestatio in 
judicium legitimum produced avoidance, while litis contestatio in 
judicium imperio continens only produced counteraction, 8 § 181. 

Some extinctions (ipso jure) of a plaintiff's right, where we might 
have expected only counterpoises (ope exceptionis) or counter rights 
of a defendant, are to be explained by the fact that there was a 
period when Roman procedure did not recognize Exceptions— 
defences by positive averment of counterpoising rights — (nec 
omnino ita ut nunc usus erat illis temporibus exceptionum, $ 108); 
but required every defence to be in the form of a simple NEGa- 
TION—allegation of the original or subsequent wurLiTY of the 
plaintiff's claim. Unlike proceedings by Formula, which extended 
to the stage of Condemnatio, and besides the ipsum jus of the 
plaintiff, investigated the counter-claims (Exceptio) of the defend- 
ant; statute-process confined itself to Pronuntiatio on the plaintiff's 
right. At such a period one of the devices for giving to the 
defendant the means of defence which he afterwards had in the 
form of Exceptio was the introduction into the Substantive code 
of certain principles respecting the nullification of nghts which 
practically answered the purpose of the Exceptions afterwards in- 
troduced into the Adjective code. 

An example of such principles is the rule: Impensae necessariae 
dotem ipso jure minuunt, Dig. 28, 4, 5, 2. A husband when com- 
pelled to restore the dower to a divorced wife was fairly entitled 
io deduct what he had been obliged to spend for its conservation 
during the subsistence of matrimony. To enable the husband to 
do this the law EXTINGUISHED the wife's right to an equivalent 
portion of the dower, and thus protected the husband as effectually 
as if it had given him an Exceptio asserting an independent right 
of retention. So the rule: Legata pro rata portione per legem 
ipso jure minuuntur, Dig. 35, 2, 78, 5, gave to an heir the right of 
retaining his Falcidian fourth as effectually as he could have done 
by pleading an Exceptio legis Falcidiae. Again the rule: Ipso 
jore minutum esse peculium, Dig. 19. 1, 80, pr., gave to an heir, 
when a slave and his peculium had been bequeathed to a legatee, 
the right of deducting whatever the slave owed by naturalis 
obligatio to the testator as effectually as if he had been allowed to 
plead the debt of the slave in an Exceptio. 


Pp 


578 DE ACTIONIBUS. [xv. $$ 115-137. 


It is remarkable that a husband's right, § 44 comm., to deduct 
from the dower all wtzes as opposed to wecessariae impensae was 
protected by an Exceptio, Dig. 25, 1, 7,1. As there seems to be no 
valid reason for a different treatment of utiles impensae and neces- 
sariae impensae, the explanation why the deduction of necessariae 
was effectuated by Extinction and that of utiles by Exception can 
only be found in the hypothesis that the former right was recognized 
by the lawgiver before, the latter after, Exceptions had been intro- 
duced into the Adjective code. Ihering, § 52. 

These phenomena may incline us to suppose that an enactment 
of Justinian, which commentators have been much embarrassed to 
explain, that Compensation should operate by Extinction (ipso jure, 
Cod. 4, 31, 14, Inst. 4, 6, 80), when Exception (here assuredly the 
natural mode of expressing the true facts of the case) would have 
answered exactly the same purpose, was a mere anachronism. Jus- 
tinian intended to assimilate Compensation to the deductions from 
Dos, Legatum, Peculium : but overlooked the fact that in those 
cases the method of Extinction was employed by the lawgiver 
instead of Exception, merely because, when those deductions were 
first authorized, Exception was unknown to jurisprudence, 

Exceptions are capable of various classifications. 

As a Negation of the plaintiff's right forms either what we have 
called the first mode of defence or the second, according as it is 
founded on a fact contemporaneous or subsequent to the plaintiff's 
title, so Exceptions rest on facts either contemporaneous or sub- 
sequent to those which found the claim of the plaintiff. Examples 
of contemporaneous exceptions are exceptio doli, exceptio metus, 
averring that a disposition on which the plaintiff relies was originally 
vitiated by force or fraud. Examples of subsequent exceptions are 
the exceptions rei judicatae, longi temporis possessionis, pacti con- 
venti de non petendo. In a Negative averment the subsequent 
event is ground of avoidance ; in an exception the subsequent event 
is ground of counteraction. 

Some exceptions can only be employed by a particular defendant 
(exceptio personae cohaerens): an example of this is beneficium 
competentiae, which cannot be pleaded by a debtor's sureties or 
successors. Others, and the great majority, are available to all de- 
fendants without distinction (exceptio rei cohaerens). 

Some exceptions are only available against a particular plaintiff 
(exceptio in personam). E.g. the exceptio doli, Si in ea re nihil 








1v. § 115-137. ] BURDEN OF PROOF. 579 


dolo malo actoris factum est, only lies against the person by whose 
fraud a disposition was vitiated, his donees and universal successors ; 
not against a vendee or singular successor. ‘The majority are 
equally available against all the world (exceptio in rem); e. g. the 
exceptio metus, which is expressed impersonally, Si in ea re nihil 
metus causa factum est, and lies against all whose title depends on 
the vitiated disposition. 

The counteraction of the plaintiff’s right by exceptio has different 
degrees of potency. Some.exceptions have the stronger effect and 
deprive the plaintiff’s right of all efficacy, barring all obligatio both 
naturalis and civilis: others have the weaker effect, and though 
they deprive the plaintiff's nght of obligatio civilis, leave it in- 
vested with obligatio naturalis. Instances of the weaker effect are 
the exceptio Sc. Macedoniani, Dig. 14, 6, 10, and beneficium com- 
petentiae, Dig. 12, 6,8, 9. Instances of the stronger effect are 
exceptio Sc. Velleiani, Dig. 12, 6, 40, pr., exceptio doli, Dig. 12, 6, 
65, 1, exceptio metus, Dig. 12, 5, 7, exceptio pacti, Dig. 12, 6, 40, 2. 
The effect of the exceptions of res judicata and prescription or lapse 
of time, as we have already stated, is controverted : but they both 
apparently have the stronger operation, except that in real actions 
prescription does not exclude the jus naturale of the proprietor, and 
prescription of pendency, §§ 104, 105, leaves a debtor subject to 
naturalis obligatio. 

In respect of the burden of proof (onus, necessitas probationis) 
the following are the leading rules: 

The party who asserts & right must prove it, whether the title 
by which it was conferred is an affirmative or negative fact: Ei 
incumbit probatio qui dieit non qui negat, Dig. 22, 8, 2. Hence 
the plaintiff, as a general rule, must prove the intentio: Semper 
necessitas probandi incumbit illi qui agit, Dig. 22, 8, 21: Actore 
non probante, qui convenitur, etsi nihil ipse praestat, obtinebit, 
Cod. 2, 1, 4: and the defendant must prove the exceptio: In 
exceptionibus dicendum est reum partibus actoris fungi oportere, 
ipsumque exceptionem velut intentionem implere, Dig. 22, 3, 
19, pr. 

But, further, in the second line of defence the proof of the 
matter alleged in avoidance is incumbent on the defendant: ut 
creditor, qui pecuniam petit numeratam, implere cogitur, ita rursum 
debitor, qui solutam affirmat, ejus rei probationem praestare debet, 
Cod. 4, 19, 1. In a passage of the Digest this rule is combined 

Pp2 





580 DE ACTIONIBUS. ~ [rv. $$ 115-137. 


with the preceding: Secundum generalem regulam, quae eos qui 
opponendas esse exceptiones adfirmant, vel solvisse debita conten- 
dunt, haee ostendere exigit, Dig. 22, 3, 25, 2. 

Moreover in the first line of defence, when it assumes the form 
of a confession and avoidance; e.g. an averment of the lunacy of 
a, testator; in other words, when it is contended that a disposition, 
in consequence of some exceptional circumstance, had not the vali- 
dity which the law presumes; the proof of this avoiding allega- 
tion is on the defendant, Cod. 6, 36, 5. Bethmann-Hollweg, 
$ 109. 

In the middle ages the true exceptio or counteractive plea was 
called exceptio juris: the first line of defence, when it assumed 
the form of an avoidance, and the second line of defence, what- 
ever its special nature, were called inappropriately exceptio facti. 
This shows that the true nature of exceptio had been forgotten : 
the similarity, however, of the three lines of defence in respect 
of the burden of proof is probably the reason why they were all 
called exceptio. 

The necessity of disclosing by the pleadings whether the de- 
fendant relies on the first or second line of defence, e. g. whether 
he denies that a debt ever existed, or maintains that it was ex- 
tinguished, in order to save the plaintiff from being taken by 
surprise (for which disclosure there was no provision in pro- 
cedure by formula), is probably the reason why the second line of 
defence as well as the third is treated as an exceptio in modern 
Germany. 

The distinction between counteraetive and destructive pleas 
does not seem to have had much influence on English pleading. 
. Stephens in his Commentaries, V. 10, admits that all pleas are not 
necessarily either traverses or pleas in avoidance; and, as an in- 
stance of a plea that falls under neither class, mentions pleas by 
way of estoppel. One species of estoppel, estoppel by record, is 
the Roman exceptio rei judicatae: so that here we find recognized 
a third class of plea under which we might have expected that 
other averments analogous to other Roman exceptions would be 
ranged. We find, however, the pleas of the statute of limitations 
(preseription) and of set-off (compensatio) given as instances of 
pleas in discharge, i.e. of what we have called the second line of 
defence, or pleas in avoidance. [For the general theory of Exceptio, 
see Savigny, $6 202, 208, 226-229.] 





rv. $$ 115-137,] METUS, DOLUS. 581 


I proceed to notice some of the points incidentally mentioned by 
Gaius. 

The denial by a defendant that he had received money from a 
plaintiff would not, in an actio Mutui, appear on the face of the 
formula: as a simple Negation of the plaintiff's right, it would fall 
under the first line of defence. It would only assume the form 
of Exceptio doli, $ 116, in an action brought on a Stipulation. 
Here the promise of the defendant to repay would establish a 
right of the plaintiff: but the absence of a previous payment 
by the plaintiff would give the defendant & countervailing right, 
to be alleged in an exceptio doli, which as in other cases of ex- 
ception he would have to prove. It was, however, a usual practice, 
in the time of the classical jurists and subsequently, for a borrower 
of money, whether under a contract of stipulation or an informal 
contract, to give the lender a written document, called cautio, as 
an acknowledgment of his having received it. A defendant, who 
had given such an acknowledgment without having in fact received 
the money would defend himself in all cases by the exceptio doli or 
exceptio non numeratae pecuniae, as it came to be called. It was 
provided by a Constitution of the Emperors Severus and Antoninus 
that if an action was brought on such a cautio, and the exceptio 
non numeratae pecuniae was pleaded in defence, the burden of 
proving that the money, which was claimed, had been paid should 
be on the plaintiff instead of being as in other cases of exception 
on the defendant, Cod. 4, 30, 8. But the rule was established that 
if the person who had given the cautio allowed a certain period to 
elapse from the time when it was given, the acknowledgment 
should be considered presumptive evidence of the money having 
been received. The period was first fixed at one year, then ex- 
tended by Diocletian to five years, and finally reduced by Jus- 
tinian to two, Cod. 4, 30, 14. Cf. Inst. 8, 21, and see 3 §§ 97- 
109, Comm. 

§ 117. Intimidation (metus) was ground to support not only 
an exception, but also an action and an in integrum restitutio. 
The words of the edict: Quod metus causa gestum erit ratum non 
habebo, Dig. 4, 2, 1, * Duress shall be a ground for rescinding any 
disposition,' are in rem scripta or impersonal: they do not specify 
the intimidator, but promise a remedy even against innocent 
persons who may have come into possession of property in con- 
sequence of an intimidation. The actio quod metus causa was 





582 DE ACTIONIBUS. (rv. $$ 115—137. 


an actio arbitraria, $ 47, and during one year was bilaterally penal 
and lay for fourfold damages: after that it only lay for simple 
damages and was purely conservative or restorative. The formula 
may be thus restored: Si paret metus causa factum esse ut Aulus 
Agerius fundum illum illi manciparet, judex nisi arbitratu tuo 
Numerius Negidius Aulo -Agerio rem restituet, quanti ea res erit 
tantae pecuniae quadruplum Numerium Negidium Aulo Agerio 
condemnato: Si non paret absolvito. Bethmann-Hollweg, $ 96, 
note 77. It was a personal action, and therefore in case of the 
defendant's insolvency was not an adequate remedy, as the plaintiff 
then would only share the assets with the other creditors of the 
defendant. To enable the plaintiff to bring a real action it would 
be necessary for him to obtain from the praetor the extraordinary 
relief of in integrum restitutio, & rescission of the forced alienation. 
He then might bring a vindicatio, which would separate his pro- 
perty from the assets-of the defendant over which other creditors 
had a claim, 8 $$ 77-81, Comm. 

Dolus, like metus, gave rise to an exceptio, $ 117, an actio 
arbitraria and in integrum restitutio. The action quod dolo malo 
factum est, if brought to recover the whole amount of loss 
incurred by fraud being unilaterally penal, or penal in respect of 
the defendant, originally was prescribed in a year. Constantine, 
A.D. 819, extended the .period of prescription to two calendar 
years, biennium continuum, Cod. 2, 21, 8. After that period the 
plaintiff had only à non-penal actio in factum for damages to the 
amount that the defendant had gained by the fraud. 

$119. In the exceptio doli the words: Si in ea re nihil dolo 
malo Auli Agerii factum sit, allege dolus praeteritus, i.e. assert 
that the right of the plaintiff was vitiated in its origin: the words: 
neque fiat, allege dolus praesens, i.e. assert that the right of the 
plaintiff, though originally clear of dolus, is now in collision with 
a right of the defendant, e.g. compensatio. Dolo facit quicunque 
id quod quaqua exceptione elidi potest petit: nam etsi inter initia 
nihil dolo malo fecit, attamen nunc petendo facit dolose, Dig. 44, 
4, 2, 5. 

Any exception of fraud might be transformed into an exceptio in 
factum, and vice versa. The exception of fraud, being discredit- 
able to the plaintiff, could not be alleged against a parent or 
patron, but had to be converted into an exception of fact, Dig. 44, 
4, 4, 16. So if a neighbour out of humanity enabled a slave to 





1v. $$ 115-137.] RES LITIGIOSA. 583 


escape from the cruelty of his master, he was liable to an action in 
factum concepta, not doli. D. 4, 8, 7, 6. 

Bona fides implies the absence of dolus: so far then as the 
exceptio merely empowered the judex to take into consideration 
equitable grounds of defence, no exceptio doli was necessary in 
actions ex bona fide, for here the commission of the judex expressly 
authorized him in the intentio of the formula to decide upon equit- 
able grounds (ex bona fide): Judicium bonae fidei continet in se 
doli mali exceptionem, Dig. 80, 1, 84, 5: Doli exceptio inest de 
dote actioni, ut in ceteris bonae fidei judiciis, Dig. 24, 8, 21. This, 
however, does not apply to the exceptio rei judicatae and others 
like exceptio cognitoria and litis dividuae, which are founded 
rather on political than on equitable considerations, and had to 
be expressed in the formula, if they formed the defence of the 
defendant, even in actions ex bona fide. So a set-off (compensatio) 
of an independent debt was required to be announced in an exceptio. 

Cieero gives the form of exceptio doli contained in the edictum 
Asiaticum of Q. Mucius: Extraquam si ita negotium gestum est 
ut eo stari non oporteat ex fide bona, Ad Att. 6, 1, *unless the 
circumstances of the disposition make ite enforcement inconsistent 
with the principles of good faith. This seems to be impersonally 
framed, but the formula, as stated, may be incomplete. 

The exceptio doli from the comprehensiveness of its meaning, 
does not sufficiently disclose the line of defence which a defendant 
intends to pursue: accordingly, in Germany, the fact which consti- 
tutes the dolus is always required to be specified. 

Property became litigious (res litigiosa, § 117) as soon as it was 
the subject of litis contestatio. Originally it was only the plain- 
tiff (non-possessor) who was prohibited from alienation. An edict 
of Augustus prohibited the alienation of litigated Italic land by 
a non-possessing plaintiff in terms which explain why an exceptio 
was necessary in order to repel the claims of the alienee. Qui 
eontra edictum divi Augusti rem litigiosam a non possidente com- 
paravit, praeter quam quod emptio nullius momenti est, poenam 
quinquaginta sestertiorum fisco repraesentare compellitur: sed hoc 
in provincialibus fundis prava usurpatione obtinuit. Fragmentum 
de jure fisci. ‘If, in contravention of the edict of Augustus, a 
subject of litigation is purchased of a vendor not in possession, 
the sale is void and the purchaser forfeits fifty sestertia to the 
treasury. The edict is inapplicable to provincial soil.’ Italic soil 


584 DE ACTIONIBUS. [rv. $$ 115-137. 


was aliened by mancipatio, 2 § 27; and mancipation of land was 
perfect without delivery of possession, 1 § 121. The edict only 
declared the sale (emptio) void, not the mancipatio. To defeat, 
therefore, the vindicatio of the purchaser, the possessor (defendant 
in the original suit) required the protection of an exceptio. 
Alienation by a defendant im possession appears not to have been 
prohibited, because, the condemnatio in any suit being pecuniaria, 
it was held that the defendant could not injure the plaintiff by 
alienation of the specific thing. 

At a later period, when execution in a suit consisted in the 
delivery of the specific thing, alienation by a defendant was re- 
eognised as an injury to the plaintiff. Accordingly Justinian's 
eode, 8, 37, 2, not only avoided every alienation by a plaintiff of 
the dominion or obligation that he claims, but also alienation by 
a possessing defendant in a vindicatio, Cod. 8, 836, 5, Nov. 112, 1. 
If the purchaser had notice of the litigiosity, he forfeits the 
purchase money to the fiscus, and the vendor forfeits an equal 
sum. If the purchaser was without notice, he recovers his pur- 
chase money and one-third additional from the vendor, who further 
forfeits two-thirds to the treasury. Vangerow, $ 160. 

Compare the prohibition of Champerty and Maintenance in 
English law. Champerty is buying or selling a disputed title to 
land not in possession of the seller. Whether the title of the vendor 
be bad or good, if the land is held adversely to him, such a sale is 
void. Choses in possession (movables) and choses in action (obliga- 
tions) may be sold after the institution of a suit, unless the assign- 
ment savour of Maintenance, i.e. be made with the design of 
fomenting litigation. 

§ 120. Justinian, Inst. 4, 18, 8, uses the term temporalis as equi- 
valent to dilatoria, but then an ambiguity arises: for temporalis 
exceptio sometimes denotes the plea of prescription (longi temporis 
exceptio), e. g. Cod. 5, 12, 80, 52: and the plea of prescription is 
perpetua, i. e. non-temporalis. 

§ 123. The statement of Gaius, that a dilatory exception, if sus- 
tained, was fatal to the claim of the plaintiff, as his right of action 
was consumed, can scarcely have been true of exceptio fori, and 
exceptio praejudicialis. When a court is incompetent to try a cause 
or postpones the trial, the instructions to the judge : Si non paret, 
absolve, are inapplicable. The cause is not heard, and the right of 
&ction cannot have been consumed when it has never been exercised. 


tv. §§ 115-137,] REPLICATION. 585 


In the legislation of Justinian, no dilatory exception was a bar 
to a subsequent institution of a suit. Savigny, § 227. 

§ 124. The disability of an infamous person (infamis) to create a 
procurator or to discharge the office of procurator was abolished by 
Justinian, Inst. 4, 18, 11. 

§ 126. The following instances of Replicatio may be found in 
the Digest. A general agent could not be sued by another agent 
without express authority. A plaintiff who has such authority will 
meet the exceptio of the defendant, alleging general agency, by a 
replicatio alleging special instructions to sue the defendant: Aut 
si mihi mandatum est ut a te peterem, Dig. 8, 8, 48. 

If a woman acting as guarantor in contravention of Sc. Vellei- 
anum sell and deliver her land to the creditor, she can recover it 
back by a real action; and meet the exceptio alleging sale and 
delivery by a replicatio alleging the contravention of Sc. Vellei- 
anum: Aut si ea venditio contra senatusconsultum facta sit, Dig. 
16, 1, 32, 2. 

Another text observes that an equality of fraud on the part 
of plaintiff and defendant is more adverse to the plaintiff than 
to the defendant, because an exceptio of the defendant alleging 
fraud on the part of the plaintiff is not allowed to be met by 
a replicatio of the latter alleging fraud on the part of the de- 
fendant: Aut si rei quoque in ea re dolo actum sit, Dig. 50, 
17, 154. 

The Replicatio, then, if we trust these examples, was a proposition 
beginning with the words Aut si: and, if this was universal, we 
must suppose that the expression of Gaius, Si non postea convenerit 
ut eam pecuniam petere liceret, § 126, only gives the substance of 
the replicatio, not the precise terms in which it was introduced by 
the praetor into the formula. 

Ulpian, Dig. 44, 1, 2, 8, and Julian, Dig. 27, 10, 7, 1, 2, differ 
from Gaius in the use of the words Duplicatio and Triplicatio. 
They identify Duplicatio with Replicatio; and consequently use 
Triplicatio to signify an averment which Gaius would call Dupli- 
catio. 

§ 180. The Praescriptio in favour of the plaintiff became obsolete 
as soon as the old doctrine respecting litis consumptio was abrogated 
and superseded by more rational rules respecting the operation of 
Res judicata, §§ 110-118, Comm. In the Digest praescriptio has 
become a mere synonym of exceptio. 





586 DE ACTIONIBUS. [rv. $$ 115-137. 


$181. In connection with the praescriptio: Ea res agatur cujus 
rei dies fuit, we may quote an anecdote which Cicero pute into the 
mouth of Crassus in illustration of the gross ignorance occasionally 
displayed by the Roman advocate : Quid ? his paucis diebus nonne, 
nobis in tribunali Q. Pompeii praetoris urbani familiaris nostri seden- 
tibus, homo ex numero disertorum postulabat ut illi unde peteretur 
vetus atque usitata exceptio daretur, CUJUS PECUNIAE DIES FUISSET ? 
quod petitoris causa comparatum esse non intelligebat : ut [ne ?] si 
‘ule infitiator probasset judici ante petitam esse pecuniam quam esset 
coepta deberi, petitor rursum quum peteret exceptione excluderetur, 
QUOD EA RES IN JUDICIUM ANTEA VENISSET, De Oratore, 1. 37. ‘A 
few days ago when I was sitting as assessor of the praetor urbanus, 
the defendants advocate pressed the praetor to insert in the formula 
the old and common exception: IN EXCLUSIVE RESPECT OF THE PAY- 
MENT ALREADY DUE, not knowing that it only protected the plaintiff, 
saving him, if his demand was proved to be premature, from being 
barred in a subsequent action by the exception of PREVIOUS LITI- 
GATION.' 

When mancipation was the usual mode of transferring property in 
immovables and was complete without delivery of possession, Ulpian, 
19, 6, and when, further, the rules of litis consumptio prevailed, 
a plaintiff would occasionally need the praescriptio: Ea res agatur 
de fundo mancipando. At a later period transfer of possession 
became the only means of transferring property, and the rules of 
res in judicium deducta (lis contestata), as we have seen, underwent 
a reform. 

Praescriptio, in the legislation of Justinian, is sometimes equiva- 
lent to Usucapio. This arose in the following manner. A pro- 
prietor’s right to recover by vindicatio might at an early period 
be barred by an averment of adverse possession, during ten years, if 
the parties were domiciled in the same province, during twenty 
years, if they were domiciled in different provinces (longi temporis 
possessio). This exceptio of the defendant appeared in the formula 
in the shape and under the name of a praescriptio. When, by later 
legislation, longi temporis possessio accompanied with bona fides 
became a title whereby property was acquired (usucapio), p. 552, it 
still retained its original name of praescriptio; though, perhaps, to 
avoid confusion, it would have been better to confine this term to 
possession accompanied with mala fides, i.e. possession that does 
not operate a transfer of ownership. The term Exceptio longi tem- 








1v. $$ 138-170.] DE INTERDICTIS. 587 


poris was a misnomer, because the averment of Usucapio was 
not an Exceptio but a Negatio of the plaintiff's ownership, i.e. 
belonged to the second line of defence. Bethmann-Hollweg, 
$ 154. 

§ 186. Savigny, Vol. 5, p. 617, supposes that the formula would 
not contain the word incertum but the substance of the contract, 
e.g. possessionem tradi. Bethmann-Hollweg only admits this in 
the case of Praetorian stipulations, e. g. Damni infecti, Rem pupilli 
salvam fore, judicatum solvi, Ratam rem haberi, $ 108. 

The leaf containing from intentione formulae, $ 134, to aut pro 
possessore, $ 144, was separated from the rest of the Veronese 
codex, and seen by Scipio Maffei in 1782. It was afterwards 
published by Haubold in 1816, the very year in which Niebuhr 
discovered the rest of the codex. 


DE INTERDICTIS. 


$ 138. Superest ut de interdictis 
dispiciamus. 

$ 139. Certis igitur ex causis 
praetor aut proconsul principaliter 
auctoritatem suam finiendis contro- 
uerstis inderponit. quod tum max- 
ime facit, cum de possessione aut 
quasi possessione inter aliquos con- 
tenditur. et in summa aut iubet 
aliquid fieri aut fieri prohibet. 
formulae autem et werborum con- 
ceptiones quibus in ea re utitur, 
interdicta (—) d . 

§ 140. Vocantur autem decreta, 
cum fieri aliquid iubet, ueluti cum 
praecipit; ut aliquid exhibeatur aut 
restitustur; interdicta uero, cum 
prohibet fieri, ueluti cum praecipit, 
ne sine vitio possidenti uis fiat, 
neue in loco sacro aliquid fiat. unde 
omnia interdicta aut restitutoria 
aut exhibitoria aut prohibitoria uo- 
cantur. 


$ 141. Nec tamen cum quid ius- 
serit fieri aut fieri prohibuerit, sta- 
tim peractum est, negotium, sed ad 
iudicem recuperatoresue itur et ibi 


$ 138. The last subject to be ex- 
amined is interdicta. 

$139. In certain controversies, 
chiefly when possession or quasi- 
possession (possession of a servi- 
tude) is in dispute, the praetor or 
proconsul intervenesin & paramount 
or sovereign capacity und commands 
some performance or forbearance; 
which commands, formulated in 
solemn terms, are called interdicts 
and decrees. 


$ 140. Decrees, when he com- 
mands that something be perform- 
ed; for instance, when he orders 
that something be produced, or 
something be restored : interdicts, 
when he prohibits some act; as 
when he forbids the violent dis- 
turbance of an unimpeachable pos- 
session, or the desecration of con- 
secrated ground. Interdicts, then, 
are orders either of restitution, or 
of production, or of abstention. 

§ 141. The order of performance 
or forbearance does not end the 
proceedings, but a formula is de- 
livered instructing a judex or re- 


588 


editis formulis quaeritur, an aliquid 
aduersus praetoris edictum factum 
sit, uel an factum non sit, quod is 
fieri iusserit. et modo cum poena 
agitur, modo sine poena : cum poe- 
na, ueluti cum per sponsionem agt- 
tur, sine poena, ueluti cum arbiter 
petitur. etquidem ex prohibitoriis 
interdictis semper per sponsionem 
agi solet; ex restitutoriis uero uel 
exhibitoriis modo per sponsionem, 
modo per formulam agitur quae ar- 
bitraria uocatur. 

$ 142. Principalis igitur diuisio 
in eo est, quod aut prohibitoria sunt 
interdicta aut restitutoria aut ex- 
hibitoria. 

$ 143. Sequens in eo est. diuisio, 
quod uel adipiscendae possessionis 
causa conparata sunt uel retinen- 
dae uel reciperandae. 

$ 144. Adipiscendae possessionis 
causa interdictum  aecommodatur 
bonorum possessori, cuius princi- 
pium est QVORVM BONORVM ; eius- 
que uis et potestas haec est, ut quod 
quisque ex his bonis quorum pos- 
sessio alicui data est, pro herede aut 
pro possessore possideat, id ei cui 
bonorum possessio data est, resti- 
tuatur. pro herede autem possidere 
uidetur tam is qui heres est, quam 
is qui putat se heredem esse; pro 
possessore ts possidet qui sine causa 
aliquam rem hereditariam uel etiam 
totam hereditatem sciens ad se non 
pertinere possidet. ideo autem ad- 
ipiscendae possessionis uocatur (in- 
terdictum), quia ei tantum utile 
est qui nunc primum conatur ad- 
Ipisct rei possessionem. itaque si 
quis adeptus possessionem amiserit, 
desinit ei id interdictum utile esse. 


$ 145. Bonorum quoque emptori 
similiter proponitur interdictum 
quod quidam possessorium uocant. 


DE ACTIONIBUS. 


[1v. $$ 138-170. 


cuperators to inquire whether any- 
thing has been committed contrary 
to the praetor’s prohibition or 
omitted contrary to his injunc- 
tion. Their judgment sometimes 
is penal, sometimes not penal; 
penal when the procedure is by 
sponsio, not penal when by de- 
mand of arbitration. Prohibitory 
interdicts are always preliminary to 
sponsio; orders of restitution or 
production sometimes to sponsio, 
sometimes to arbitration. 

$ 142. The first division, then, 
of interdicts is into orders of ab- 
stention, of restitution, of produc- 
tion. 

$ 143. The next is into interdicts 
for obtaining possession, for retain- 
ing possession, for recovering pos- 
session. 

$144. An interdict for obtaining 
possession is issued for the grantee 
of possession, beginning: * What- 
ever portion of the goods ;' and in- 
joining, that whatever portion of 
the goods, whereof possession has 
been granted to the claimant, is in 
the hands of one who holds as 
successor (civil, praetorian, or fide- 
commissary) or as mere possessor, 
such portion shall be delivered to 
the grantee of possession He 
holds as successor who either is 
successor or thinks himself suc- 
cessor; he holds as mere possessor 
who relies on no title but holds 
a portion or the whole of the in- 
heritance, knowing that he is not 
entitled. 1t is called an interdict 
for obtaining possession because it 
is only available for initiating poe- 
session, and is not granted to a 
person who has already had and 
lost possession. 

§ 145. The execution purchaser 
in insolvency | purchaser at the sale 
of the goods of an insolvent debtor] 
also has an interdict, which some 
call possessory. 


1v. §§ 138-170.] 


§ 146. Item ei qui publica bona 
emerit, eiusdem condicionis inter- 
dictum proponitur quod appellatur 
sectorium, quod sectores uocantur 
qui publice bona mercantur. 


$ 147. Interdictum quoque quod 
appellatur Saluianum, ad£piscendae 
possessionis (causa) conparatum 
est, eoque utitur dominus fundi de 
rebus coloni quas s pro mercedibus 
fundi pignori futuras pepigisset. 


$ 148. Retinendae possessionis 
causa solet interdictum reddi, cum 
ab utraque parte de proprietate 
alicuius rei controuersia est, et ante 
quaeritur, uter ex litigatoribus pos- 
sidere et uter petere debeat ; cuius 
rei gratia conparata sunt vTI POBBI- 
DETIS et VTRVBI. 

$149. Et quidem vii PossrpETIS 
interdictum de fundi uel aedium 
poesessione redditur, vTRVBI uero 
de rerum mobilium possessione. 

$150. Et siquidem de fundo uel 
aedibus interdicitur, eum potiorem 
esse praetor iubet, qui eo tempore 
quo interdictum redditur, nec ui nec 
clam nec precario ab aduersario pos- 
sideat; si uero de re mobili, eum 
potiorem esse iubet, qui maiore 
parte eius anni nec ui nec clam nec 
precario ab aduersario possedertt ; 
idque satis ipsis uerbis interdicto- 
rum significatur, 


- $151. Sed in vrevsr interdicto 
non solum sua cuique possessio pro- 
dest, sed etiam alterius quam ius- 
tum est ei accedere, ueluti eius cul 
heres extiterit, eiusque a quo emerit 
uel ex donatione aut dotis nomine 
&cceperit. itaque si nostrae pos- 
sessioni iuncta alterius iusta pos- 
sessio exuperat aduersarii posses- 
sionem, nos eo interdicto uincimus. 
nullam autem propriam possessio- 


DE INTERDICTIS. 


589 


$ 146. The purchaser of the con- 
fiscated goods of a criminal has a 
similar interdict, which is called 
sectorium, because the purchasers 
of public property are called sec- 
tores. 

§ 147. The interdict called Sal- 
vianum is an interdict for obtaining 
possession, and is available to the 
landlord against the detainers of 
the tenant's property which has 
been hypothecated as a security for 
rent. 

$ 148. Interdicts for retaining 
possession are granted when two 
parties claim proprietorship, in or- 
der to determine which shall be 
plaintiff and which defendant, and 
are called the interdicts: * Which- 
ever party has possession, and, 
* Whichever party had possession.’ 

$ 149. The former refers to land 
&nd houses, the latter to movables. 


$ 150. When the interdict relates 
to land or houses, the praetor pre- 
fers the party who at the issuing of 
the interdict has possession unim- 
peachable in respect of the adver- 
sary for violence, clandestinity, or 
permission. When the interdict re- 
lates to a movable, he prefers the 
party who in respect of the ad- 
versary has possessed without vio- 
lence, clandestinity, or permission, 
during the greater part of the year. 
The terms of the interdicts suffi- 
ciently show this distinction. - 

$ 151. In the interdict, * Which- 
ever party possessed,' possession in- 
cludes, besides the possession of the 
litigant, any possession of another 
person which may justly form an 
accession, such as that of a person 
deceased to whom he succeeds, that 
of a vendor, of a donor, of a settlor 
of dower; and if my possession 
added to the just possession of an- 
other person exceeds that of the 


590 


nem habenti accessio temporis nec 
datur nec dari potest; nam ei quod 
nullum est, nihil accedere potest. 
sed et si witiosam habeat possessio- 
nem, id est aut ui aut clam aut pre- 
cario ab aduersario adquisitam, non 
datur accessio; nam ei ( possessio) 
sua nihil prodest. 


$ 152. Annus autem retrorsus 
numeratur. itaque si tu uerbi gratia 
vii mensibus possederis prioribus, 
et ego vii posterioribus, ego potior 
ero, quod tríéum priorum mensium 
possessio nihil tibi in hoc interdicto 
prodest, quod alterius anni posses- 
Bio est. 


$ 153. Possidere autem uidemur 
non solum si ipsi possideamus, sed 
etiam si nostro nomine aliquis in 
possessione sit, licet is nostro iuri 
subiectus non sit, qualis est colonus 
et inquilinus; per eos quoque, spud 
quos deposuerimus, aut quibus com- 
modauerimus, aut quibus gratuitam 
habitationem  praestiterimue, ipsi 
possidere uidemur. et hoc est quod 
uulgo dicitur retineri possessionem 
posse per quemlibet, qui nostro no- 
mine sit in possessione. quin etiam 
plerique putant animo quoque reéi- 
neri possessio( nem, id es! ut quam- 
«i8 neque ipsi simus tn possessione) 
neque nostro nomine alius, tamen 
81 non relinquendae possessionis 
&nimo sed postea reuersuri inde 
discesserimus, retinere possessionem 
uideamur. adtpisci uero possessio- 
nem per quos possimus, secundo 
commentario rettulimus. nec ulla 
dubitatio est quin animo possessio- 
nem adipisci non possimus. 


$ 154. Reciperandae possessionis 
causa solet interdictum dari, si quis 
ex possessione ui deiectus sit; nam 
ei proponitur interdictum cuius 
principium est VNDE TV ILLVM VI 


DE ACTIONIBUS. 


[rv. $$ 138—170. 


adversary, my claim is preferred; 
but he who has no possession of his 
own neither receives nor can receive 
any accession of another's possession; 
for what is non-existent is incapable 
of receiving accession. So a pos- 
cession impeachable for violence, 
clandestinity, or permission, cannot 
recelve an accession, and is of no 
avail. 

$ 152. The year computed is the 
year immediately preceding; so 
that, if you possessed during the 
first eight months, and I during the 
seven following months, I am pre- 
ferred, because your possession for 
the first three months avails you 
nothing, it having been in a pre- 
vious year. 

$153. My possession includes, 
besides my personal possession, the 
possession of any one who holds in 
my name, though not subject to my 
power; for instance, the possession 
of my tenant or lodger. So also a 
depositary, borrower for use, usu- 
fructuary, or grantee of use or 
habitation, may be the instrument 
of my possession, as is expressed by 
the saying that we retain 
sion by those who hold in our name. 
It is generally allowed that inten- 
tion suffices for the refention of 
possession, that is, although we are 
neither in possession ourselves, nor 
anyone else on our account, yet if 
we have gone away without mean- 
ing to abandon possession but with 
the intention of returning, it would 
seem that we retain possession. 
The instruments of obtaining pos- 
session were mentioned in the se- 
cond book, and it is agreed on all 
hands, that for obtaining posses- 
sion intention does not suffice. 

$ 154. An interdict for recover- 
ing possession is granted to a per- 
son dispossessed of an immovable 
by violence, beginning: ‘In the 
place whence thou hast violently 


1v. §§ 138-170.] 


DEIECISTI, per quod is qui deiecif, 
cogitur ei restituere rei possessio- 
nem, si modo is qui deiectus est, 
nec ui nec clam nec precario (ab eo) 

derit; — eum qui a me ui aut 
clam aut precario possidet, inpune 
deicio. 


$ 155. Interdum tamen etsi eum 
ui deiecerim qui a me ui aut clam 
aut precario possederit, cogor ei re- 
stituere possessionem, ueluti si ar- 
mis eum ui deiecerim ; nam propter 
atrocitatem delicti in tantum patior 
actionem, ut omni modo debeam ei 
restituere possessionem. armorum 
autem appellatione non solum scuta 
et gladios et galeas significari in- 
tellegemus, sed et fustes et lapides. 


$ 156. Tertia diuisio interdicto- 
rum in hoc est, quod aut simplicia 
sunt aut duplicia. 

$157. Simplicia sun£ ueluti in 
quibus alter actor, alter reus est, 
qualia sunt omnia restitutoria aut 
exhibitoria; namque actor est qui 
desiderat aut exhiberi aut restitui, 
reus is est a quo desideratur ut ex- 
hibeat aut restituat. 


$ 158. Prohibitoriorum autem 
interdictorum alia duplicia, alia 
simplicia sunt. 

$ 159. Simplicia sunt ueluti qui- 
bus prohibet praetor in loco sacro 
aut in flumine publico ripaue eius 
aliquid facere reum ; nam actor est 
qui desiderat ne quid fiat, reus is 
qui aliquid facere conatur. 


$ 160. Duplicia sunt ueluti vTI 
POSSIDETIS interdictum et vTRVBI. 
ideo autem duplicia uocantur, quod 
gar utriusque litigatoris in his con- 


DE INTERDICTIS. 


591 


ousted, which compels the invader 
to restore possession, if the person 
ousted possessed without violence, 
clandestinity, or permission, in re- 
Bpect of the invader. Whereas, if 
his own possession was violent, 
clandestine, or permissive, a person - 
may be ousted with impunity. 

$ 155. Sometimes, however, the 
person violently ousted, though his 
own possession was violent, clandes- 
tine, or permissive, in respect of the 
adversary, must be reinstated, that 
is, if he was ousted by force of arms: 
for on account of the heinousness 
of the offence I am punished to the 
extent of being compelled by action 
[i.e. by the interdict de vi armata] 
to reinstate him without exception 
or limitation. By the term arms 
we are to understand not only 
shields, swords, and helmets, -but 
also sticks and stones. 

§ 156. A third division of inter- 
dicts is into Simple and Double. 


§ 157. Those are simple wherein 
one party is plaintiff and the other 
defendant, as always is the case in 
orders of restitution or production ; 
for he who demands restitution or 
production is plaintiff, and he 
from whom it is demanded is de- 
fendant. 

§ 158. Of prohibitory interdicts, 
some are simple, others double. 


§ 159. The simple are exemplified 
by those wherein the praetor com- 
mands the defendant to abstain from 
desecrating consecrated ground, or 
from obstructing a public river or 
its banks; for he who demands 
the forbearance is plaintiff, he who 
attempts the performance is de- 
fendant. 

§ 160. Of double interdicts we 
have examples in: ‘Whichever party 
possesses,’ and ‘ Whichever party 
possessed. They are denominated 





592 


dicio est, nec quisquam praecipue 
reus uel actor intellegitur, sed 
unusquisque tam rei quam actoris 
partes sustinet; quippe praetor 
pari sermone cum utroque loquitur. 
nam summa conceptio eorum inter- 
dictorum haec est vTI NVNC POSSI- 
DETIS, QVOMINVS ITA POSSIDEATIS, 
VIM FIERI VETO; item alterius 
VTRVBI HIC HOMO DE QVO AGITVR 
[APVD QVEM] MAIORES PARTE HVIVS 
ANNI FVIT, QVOMINVS IS EVM DVCAT, 
VIM FIERI VETO. 


§ 161. Expositis generibus inter- 
dictorum sequitur, ut de ordine et 
de exitu eorum dispiciamus. et 
incipiamus a simplicibus. 

$ 162. (St) igitur restitutorium 
uel exhibitorium interdictum red- 
ditur, ueluti ut restituatur ei pos- 
sessio qui ui deiectus est, aut exhi- 
beatur libertus cui patronus operas 
indicere uellet, modo sine periculo 
res ad exitum perducitur, modo cum 
periculo. 

$ 163. Namque si arbitrum pos- 
tulauerit is cum quo agitur, accipit 
formulam quae appellatur arbitra- 
ria, et iudicis arbitrio si quid re- 
stitui uel exhiberi debeat, id sine 
periculo exhibet aut restituit, et ita 
absoluitwr; quodsi nec restituat 
neque exhibeat, quanti ea res est 
condemnatur. sed et actor sine 
poena experitur cum eo ques neque 
exhibere neque restituere quiequam 
oportet, praeterquam si calumniae 
iudicium ei oppositum fuerit deci- 
mae partis. quamquam Proculo 
placuit denegamdum calumniae iu- 
dicium et qui arbitrum postulauertt, 
quasi hoc ipso confessus uideatur 
restituere se uel exhibere debere. 
sed alio iure utimur, et recte; po- 
tius enim ut modestiore uia litiget, 
&rbitrum quisque petit quam quia 
confitetur. 


DE ACTIONIBUS. 


[1v. $$ 138-170. 


double because the footing of both 
perties is equal, neither being ex- 
clusively plaintiff or defendant, but 
both playing both parts, and both 
being addressed by the praetor in 
identical terms. For by the effect 
of these interdicts whichever party 
now possesses the land, the other is 
forbidden to disturb his possession ; 
and whichever party has possessed 
& slave during the greater part of 
the year, the other is forbidden to 
disturb him in the abduction of the 
slave. 

$ 161. After classifying interdicts 
we have next to explain their pro- 
cess and result; and we begin with 
the simple. 

$ 162. When an order of resti- 
tution or production is issued, for 
instance, of restitution of seisin to 
a disseisee, or of production of a 
freedman whose services are re- 
quired by his patron, the proceed- 
ings are sometimes penal, some- 
times not penal 

$163. When arbitration is de- 
manded by the defendant, a formula 
arbitraria is delivered, and if the 
judex directs him to restore or pro- 
duce anything, he either restores or 
produces it without further penalty, 
or he does not restore or produce 
it, and then he is condemned in its 
simple value. Neither does the 
plaintiff incur any penalty for suing 
a defendant who is not obliged to 
produce or restore, unless he is sued 
for a tenth part in an action for 
vexatious litigation. For though 
Proculus held that the demand of 
arbitration precludes the defendant 
from suing for vexatious litigation, 
as an admission of the plaintiff's 
right, the contrary view has justly 
prevailed ; for the demand of an 
arbiter shows that the defendant 
wishes to render litigation less 
dangerous, but not that he confesses 
the opponent's claim. 








1v. $$ 138-170. ] 


§ 164. Obseruare (autem) debet 
is qui uult arbitrum petere, ut sta- 
tim petat, antequam ex iure exeat, 
id est antequam a praetore discedat ; 
sero enim petentibus non indul- 
getur. 


$ 165. Itaque si arbitrum non 
petierit, sed tacitus de iure exierit, 
cum periculo res ad exitum perdu- 
citur. nam actor prouocat aduer- 
sarium sponsione, (quod) contra 
edictum praetoris non exhibuerit 
aut non restituerit ; ille autem ad- 
uersus sponsionem aduersarii resti- 
pulatur. deinde actor quidem spon- 
sionis formulam edit aduersario, ille 
huic inuicem restipulationis. sed 
actor sponsionis formulae subicit et 
aliud iudicium de re restituenda uel 
exhibenda, ut si sponsione uicerit, 
nisi el res exhibentur aut restitua- 
tur, | 
(24 uersus in C legi nequeunt) 
|— aliud facere quam qu— 
dicat qu 

(7 uereus in C legi nequeunt) 
| — appellata— | 
(3 uersus in C legi nequeunt) 


| | 




















|- qua 
(3 uersus in C legi nequeunt) 
Imodis ———-|— paratus fuit 











(3 wersus in C legi nequeunt) 

$ 166. |—fructus licitan- 
do, is tantisper in possessione con|- 
stituitur, si modo aduersario suo 
fructuaria stipulatione ca|uerit, cuius 
uis e£ potestas haec est, ut si contra 
eum de poss|essione pronuntiatum 
fuerit, eam summam  aduer|sario 
soluat. haec autem licendi conten- 
tio fructus licita|tio uocatur, scilicet 
quia | postea alter | al- 
terum sponsione prouocat, quod ad- 
uersus edictum praetoris possidenti 
sili wis facta sit, et inuicem ambo 
restipulan|tur aduersus sponsionem ; 
uel ——-| una inter eos sponsio item- 














DE INTERDICTIS. 


593 


$164. The defendant must be 
careful, if he wishes to demand an 
arbiter, to make the demand at 
once before he leaves the court or 
tribunal of the praetor; for a 
subsequent demand will not be 


granted. 


$ 165. If he leaves the court 
without requesting an arbiter, the 
proceeding becomes penal: the 
plaintiff challenges the defendant 
to wager a sum to be forfeited by 
the defendant if he has contravened 
the edict of the praetor by failing 
to produce or restore; and the de- 
fendant challenges the plaintiff to 
a counter wager of a similar sum 
to be forfeited by the plaintiff upon 
the opposite condition. The plain- 
tiff then delivers the formula of the 
wager, and the defendant delivers 
the formula of the counter wager. 
The plaintiff, in addition to the 
formula of the action on the wager, 
delivers the formula of another 
action (judicium Cascellianum) for 
the production or restoration of the 
thing in dispute, upon which, if he 
obtains judgment in the action on 
the wager and the thing is not 
restored or produced, the defendant 
will be condemned in damages to 
the amount of its value. 


§ 166. When a double interdict, 
Uti possidetis, for instance, has 
been issued, the interim possession 
or mesne profits are gold by auction, 
and the higher bidder of the liti- 
gants is placed in possession pend- 
ing the controversy, provided that 
he gives his opponent security by 
the fructuary stipulation, which is 
conditioned for forfeiting, in the 
event of losing the cause, the value 
of the interim profits as fixed by 
the auction, and this bidding of 
the parties against one another is 
called a bidding for the fruits, be- 


Qq 





594 


que restipulatio una —lad eam fit. 
| | resti—. 











$ 166 a. Iudex apud quem de ea 
| re agitur, illud scilicet requirit 
(quod) praetor interdicto conplexus 
est, id est uter eorum eum fundum 
easue aedes per id tempus quo in- 
terdictem redditur, nec ui nec clam 
nec precario possederit. cum iudex 
id explorauerit, et forte secundum 
me iudicatum sit, aduersarium mihi 
et sponsionis et restipulationis sum- 
mas quas cum eo feci, condemnat, 
et conuenienter me sponsiones et 
restipulationis, quae mecum factae 
sunt, absoluit. et hoc amplius si 
apud aduersarium meum possessio 
est, quia is fructus licitatione uicit, 
nisi restituat mihi possessionem, 
Cascelliano siue secutorio iudicio 
condemnatur. 


$ 167. Ergo is qui fructus licita- 
tione uicit, si non probat ad se per- 
tinere possessionem, sponsionis et 
restipulationis et fructus licitationis 
summam poenae nomine soluere et 
praeterea possessionem restituere 
iubetur; et hoc amplius fructus 
quos interea percepit, reddit. summa 
enim fructus licitationis non pre- 
tium est fructuum, sed poenae no- 
mine soluitur, quod quis alienam 
possessionem per hoc tempus reti- 
nere et facultatem fruendi nancisci 
conatus est. 


DE ACTIONIBUS. 


[1v. $$ 138-170. 


cause it values and assi the 
power of taking the fruits of the 
thing during the preliminary in- 
terdict procedure. Then each 
party challenges the opponent to 
wager a sum to be forfeited by the 
promisor if he has contravened the 
interdict by violently disturbing 
the possession of the promisee, and 
each party, after binding himself 
as promisor in a wager, becomes 
the promisee in a similar counter- 
wager.  — 

§ 166 a. The judex who tries the 
action on the wager determines the 
question left undetermined in the 
interdict, namely, which party was 
in possession of the house or land 
in question, without violence, clan- 
destinity, or permission, in respect 
of the other at the time when the 
edict was issued. If the judex de- 
termines this in my favour, he con- 
demns my adversary in the penal 
sums of the actions on the wager 
and counter-wager in which I was 
promisee, and absolves me in the 
actions upon the wager and coun- 
ter-wager in which I was pro- 
misor; and, if my opponent is in 
possession as higher bidder in the 
auction, unless le restores pos- 
session, he is condemned in the 
action called Cascellianum or Se- 
cutorium, 

§ 167. So that if the higher 
bidder in the auction fails to prove 
that he had possession, he is or- 
dered to pay the sums of the wager 
and counter-wager in which he was 
promisor, and the price he offered 
for the mesne profits at the sale 
by auction, by way of penalty; and 
further, to restore possession of the 
thing in question, and restore any 
profits of which he has had per- 
ception; for the price fixed by the 
auction is not paid in purchase of 
the profits, but as a penalty for 
temerity in attempting to detain 


1v. $$ 138-170.] 


$ 168. Ille autem qui fructus li- 
citatione uictus est, si non proba- 


uerit ad se pertinere possessionem, - 


tantum sponsionis et restipulationis 
summam poenae nomine debet. 

§ 169. Admonendi tamen sumus 
liberum esse ei qui fructus licita- 
tione uictus erit, omissa fructuaria 
stipulatione, sicut Cascelliano siue 
secutorio iudicio de possessione re- 
ciperanda experitur, ita similiter 
de fructus licitatione agere. in quam 
rem proprium iudicium conparatum 
est quod appellatur fructuarium, 
quo nomine actor iudicatum solui 
satis Accipit, dicitur autem et hoc 
iudicium secutorium, quod sequitur 
sponsionis uictoriam; sed non aeque 
Cascellianum uocatur. 


$ 170. Sed quia nonnulli inter- 
dicto reddito cetera ex interdicto 
facere nolebant, atque ob id non 
poterat res expediri, praetor in eam 
rem prospexit et conparauit inter- 
dicta quae secundaria appellamus, 
quod secundo loco redduntur. quo- 
rum uis et potestas haec est, ut qui 
cetera ex interdicto non faciat, 
ueluti qui uim non faciat aut fruc- 
tus non liceatur aut qui fructus 
licitationis satis non det aut si 
sponsiones non faciat sponsionumue 
iudicia non accipiat, siue possideat, 
| restituat aduersario possessionem, 
stue non possidelat, uim illi possi- 
denti ne faciat. itaque etsi alias 
potuerzé | interdicto vr1 PossrpETIS 
uincere, si cetera ex interdicto | 
per interdictum secundarium 





(2 uersus in C legi nequeunt) 
| secundarium— | 
quamuis hanc opinionem — |—Sabi- 
nus et Cassius secuti fuerint, —|— 











DE INTERDICTIS, 


593. 


the possession and obtain the en- 
joyment that belonged to another. 
$ 168. If the lower bidder in the 
auction fails to prove that he had 
possession, he is only condemned 
to pay the sum of the wager and 
counter-wager by way of penalty. 

$ 169. It is open to the lower 
bidder, if he succeeds in the action 
on the wager in which he is pro- 
misee, instead of proceeding on the 
fructuary stipulation, just as he 
brings the Cascellianum or Secu- 
torium action for recovering pos- 
session, to bring an action upon 
the sale by auction which is called 
fructuarium, in which he is entitled 
to security with sureties for satis- 
faction of judgment; which action, 
like the action for recovering pos- 
session, as following the result of 
the action on the wager is called 
Secutorium ; but is not, like the 
action for recovering possession, 
also called Cascellianum. 

§ 170. As sometimes, after the 
issue of an interdict, one of the 
parties declined to take one of the 
subsequent steps, and the proceed- 
ings came to a stand-still the 
praetor has provided for this con- 
tingency, and invented the so-called 
secondary interdicts, which in such. 
a case are issued: whose effect is, 
that if a party decline to take any 
necessary step in the interdict pro- 
cedure, such as the violent disseisin, 
or the auction of the mesne profits, 
or finding bail for the penal sum 
fixed by the auction, or the wager, 
or the trial on the wager, if in 
possession he shall be ousted, if 
out of possession he shall not after- 
wards be entitled, by making the 
violent disseisin, to continue the 
proceedings in Utrubi or Uti pos- 
sidetis and so, although he might 
have been successful in maintaining 
possession if he had complied with 
the requisites of procedure, he will 


Q2 





596 DE ACTIONIBUS. [1v. $$ 138—170. 


(9 uersus in Ó legi nequeunt) be deprived of possession by tbe 
secondary interdict, if he has not 
(20 uersus in C legi nequeunt) done so. 








Interdicts are characterized by Gaius as proceedings wherein the 
praetor principaliter auctoritatem suam interponit.  Principaliter 
may simply refer, as was assumed in the first edition, to the chro- 
nological order of steps in legal proceedings; and then interdict 
procedure will be characterized by the fact that it opens with a 
command of the praetor (interdictum) whereas ordinary procedure 
opened with an act of the plaintiff (in jus vocatio) and the praetor's 
authority was not very signally manifested, at least in statute- 
process, till the stage of execution (addictio, missio in possessionem). 
But Bethmann-Hollweg, § 98, seems correct in giving a less insig- 
nificant meaning to the term which expresses the essential contrast 
of Interdict and Action, and interpreting the word principaliter as 
expressive of the pre-eminence, supremacy, or absolute power, of the 
praetor in the sphere where interdicta were employed. The con- 
trast then will be between the jurisdictio of the praetor and his 
imperium, In his jurisdictio his functions are merely ministerial 
or ancillary to those of the legislator: in his imperium, as con- 
servator of order, custodian of the peace (to use modern phrases), 
and repressor of violence, he is invested with a portion of the legis- 
lator's sovereign power. This antithesis of LEGISLATOR and ADUMI- 
NISTRATOR meets us in several fundamental classifications of Roman 
jurisprudence: it has already been indicated in connexion with the 
contrasted terms, judicia legitima and judicia imperio continentia 
§§ 103-109 comm., and the present is a fitting place for again 
noticing some of its principal aspects. 

(1) Statute-process and the Formulary system are contrasted by 
the respective predominance in each of the legislator and admi- 
nistrator. In Legis actio the Legislator and the Litigants seem 
alone to occupy the scene. The Praetor is only present as master 
of the ceremonies, and even as such can only utter sentences which 
the Legislator has previously dictated. In the Formulary system 
the Praetor appears with much larger attributions; he seems to 
have stepped in front of the Legislator and has taken much of the 
initiative from the Suitors. Thus, marking the respective promi- 
nence of the sTATUTE and the ADMINISTRATOR, we might denominate 
the older and younger systems as Legis actio and Praetoris inter- 








1v.$$138-170.] PRINCIPALITER INTERPONIT. 597 


positio: and it is this accentuation of the statute-book or lawgiver 
as opposed to the tribunals or executive that the translation has 
attempted to express in offering the invented term Statute-process 
as a version of Legis actio. 

(2) Both Statute-process and the Formula, as representing at 
different periods the Ordo judiciorum or ordinary course of pro- 
cedure, by which a magistrate appointed a judex to try a case, 
exemplify the predominance of the lawgiver as contrasted with 
that of the magistrate, when opposed to extraordinary procedure 
or Cognitio extraordinaria praetoris. The latter was the appro- 
priate procedure in plaints of children against their parents or 
slaves against their owners, victims to whom the civil law ac- 
corded no rights: or in grievous damnification (laesio) occasioned 
by some exceptional condition (justa causa)—fraud, violence, ab- 
sence, ignorance, minority (1 $$ 197—200 Comm.)—so exceptional 
that it had been overlooked or disregarded in the rules of jus strictum 
respecting dispositions and the modes of acquiring dominion. In these 
and other cases, e. g. claims of honorarium (8 $ 162 Comm.) for liberal 
services, which in infant society had been gratuitous or only recom- 
pensed by politieal power: claims under testamentary trusts which 
had not been recognized when the rules regarding testamentary dis- 
positions were crystallizing : the praetor by his inquisition and decree 
(§§ 103-109 Comm.) superseded not only the judex but also the law- 
giver, who had uttered no commands respecting the various cireum- 
stances above enumerated. Respecting trusts compare the statement 
of Justinian: Fideicommissa ... . nullo vinculo juris, sed tantum 
pudore eorum qui rogabantur, continebantur. Postea primus divus 
Augustus semel iterumque . . . . jussit consulibus auctoritatem 
suam interponere. Quod .... paulatim conversum est in as- 
&duam jurisdictionem . . . . ut paulatim etiam praetor proprius 
crearetur qui de fideicommissis jus diceret, Inst. 2, 23, 1. 

(3) The same antithesis meets us as a principle of division even 
within the limits of Ordo judiciorum. Here we find on the one 
hand the class of actiones legitimae, actions of civil law, including 
under one of the wider acceptations of civil law actiones ex bona 
fide; and on the other the class of actiones praetoriae, that is, ac- 
tiones fictitiae and actions with a formula in factum concepta. In 
the latter class the praetor, except so far as he abstained with a 
demure deference from inserting in the formula the sacred term 
Oportere, certainly exercised the attributions of a legislator. A 


598 DE ACTIONIBUS. [1v. $$ 138—170. 


similar, though not identical division, as already has been men- 
tioned, p. 543, was that into judicia legitima and judicia imperio 
continentia; a division that, speaking roughly, corresponded to the 
functions of the praetor in imperial Rome and his functions in the 
subject provinces. This last division, though important in its time, 
was more purely historic and accidental than the preceding: it has 
left a less permanent impress on Roman law, and its traces are 
nearly effaced from the compilation of Justinian. 

(4) Interdict procedure, as opposed to the regular mode of liti- 
gation, is defined by Gaius by the characteristic feature that the 
magistrate principaliter auctoritatem suam interponit. This feature, 
as we have now seen, was not peculiar to Interdicte: but if we sup- 
pose that Interdicts were coeval with Statute-process and formed 
a matter of Cognitio extraordinaria; and that, further, the other 
Bubjects of cognitio extraordinaria were then imperfectly developed; 
at such a period Interdicts would form the most signal manifestation 
of magisterial auctoritas : and it is perhaps to a jurist of this period 
that the definition we have quoted is due. So large a power of the 
magistrate must however have seemed, even at Rome, inconsistent 
with republican liberty:.and m Interdict procedure, as we know it, 
obedience to the praetor's decree is not enforced by the praetor 
himself but by a judex, and by legal proceedings in the ordinary 
form; either, that is, by an actio ex sponsione or by an actio 
arbitraria ($ 141). Aceordingly in the last period we find Inter- 
dict procedure opposed to Cognitio extraordinaria and ranked 
under the contra-distinguished class of Jus ordinarium or Ordo 
judieiorum : § 155, Ceterum cessat interdictum et succedere poterit 
notio praetoris (i.e. eognitio extraordinaria) ut apud eum discep- 
tetur utrum quis in potestate sit an non sit, Dig. 43, 30, 3, 3. 
Thus the Interdict became rather a matter of jurisdictio than of im- 
perium. However it still remained true that in issuing an Interdict 
the praetor had spoken with the voice of a sovereign. This precept 
is not an application of some general command of the legislator, but 
is itself a law, and will serve as the governing principle of future 
adjudieation. If we describe Law as a universal interdict addressed 
by the legislator to the community, Interdict may be described as 
a particular Law addressed by the magistrate to individuals. This 
will appear more plamly when we come to the details of Interdict 
procedure. 

Interdicts relate to subjects in almost all departments of the code.’ 


1v. $$138-170.] DE INTERDICTIS. 599 


A. In jus publicum and jus sacrum we find the interdicts re- 
lating to sacred places and publie places—public roads or public 
rivers. These places are protected by interdicta popularia, inter- 
dicts in which any individual may vindicate as prosecutor the 
interests of the public, Dig. 43, 8, 2, 84. | 

B. In the law of status and the law of domestic relations there 
are the interdictum de homine libero exhibendo, Dig. 43, 29, a kind 
of Writ of Habeas Corpus: interdicta de liberis exhibendis and de 
liberis ducendis, protecting the patria potestas, Dig. 43, 30: and de 
libertis exhibendis, assisting the patron. 

C. In the code of Property (res familiaris) and (1) in the depart- 
ment of res singulae we have the interdicts Utrubi, Uti possidetis, 
and Unde vi, relating to the possession of movables and immovables : 
and others, closely allied, similarly related to the subjecte of ser- 
vitudes. In controversies between owners of neighbouring land we 
have interdictum Demolitorium based on Operis novi nunciatio (an 
admonition of the defendant to desist from some architectural in- 
novation), an interdict requiring the demolition of the building 
erected in spite of such prohibition on the part of the plaintiff 
(nuneians) and before such prohibition was set aside by judicial 
authority, Dig. 89, 1: and the interdict Quod vi aut clam, simi- 
larly requiring the restitution or undoing of some innovation in 
land (polluting streams, cutting trees, ploughing up pasture, &c.) 
that has been executed either furtively or in face of the prohibition 
of some party who is interested and who has jus prohibendi, 
Dig. 48, 24: and other interdicts de arboribus caedendis and de 
glande legenda, Dig. 43, 27, 28, enforcing provisions of the Twelve 
Tables. EEUU 

I said that interdicts were to be found in almost all depart- 
ments of the code. It is observable that no interdicte are employed 
under the code of Obligation (choses in action, jus in personam) 
except in cases which combine obligation with a real right (jus in 
rem). Thus interdictum Salvianum, $ 147, protects the landlord 
in the recovery of his rent by enforcing his pignus on the movables 
of the lessee. | : 

(2) In the code of rerum universitas we have the interdicta 
Quorum bonorum, $ 144, Dig. 43, 2, and Quod legatorum, Dig. 
48, 8, in aid of the universal successor. 

D. In the eode of Procedure we have the interdicts Quem 
" fundum, Quam hereditatem, Quem usumfructum, $ 89, and the 





600 DE ACTIONIBUS. [rv. $$ 138—170. 


interdicta Secundaria, § 170, compelling a defendant in a real 
action to defend himself in the mode prescribed by the legislator 
under pain of forfeiting possession, Here too we may place the 
interdicts Utrubi and Uti possidetis so far as they are not them- 
selves final suits but only means of determining provisional or 
interimistic possession during the pendency of the definitive vindi- 
eatio : and here too, if we look on Quorum bonorum as standing to 
hereditatis petitio in the same relation in which Uti possidetis 
stands to vindicatio, i.e. as merely preparatory to the final suit, we 
may place the interdict Quorum bonorum. At a later stage of 
proceedings the interdict Ne vis fiat ei qui in possessionem missus 
erit, Dig. 48, 4, protects the creditor who has obtained execution. 
The interdictum fraudatorium protecte the creditor against fraudu- 
lent alienation by an insolvent debtor, Dig. 42, 8: the interdictum 
possessorium and interdictum sectorium, § 145, protect the pur- 
chaser of the estate of the insolvent or the condemned criminal. 

As an alternative to some of these interdicta, the plaintiff had his 
option of an actio in factum: e.g. an alternative to interdictum 
Salvianum was actio Serviana, Inst. Just. 4, 6, 7; and an alter- 
native to interdictum fraudatorium was actio Pauliana, Dig. 22, 1, 
38, 4. Or possibly in these cases also the Interdict was the pro- 
visional, the Action the definitive proceeding. 

$ 140. Restituere in respect of the acts which it denotes is a 
word of many meanings, and comprehends several acte which in 
physical character have little in common but the name. Sometimes 
it means the demolition of an unlawful structure: e.g. Quod in 
flumine publico ripave ejus fiat, sive quid in id flumen ripamve ejus 
immissum habeas, quo statio iterve navigio deterior sit, fiat, resti- 
tuas, Dig. 48, 12, 1, 19. * What you have built in & public river or 
on its bank, or what you have discharged into the river or on to its 
bank, interfering with the anchorage or passage of vessels, I com- 
mand you to demolish and remove.’ Sometimes it means the 
restoration of possession, as in the interdict Unde vi, § 154; some- 
times the delivery of possession, where no possession has preceded, 
as in the interdict Quorum bonorum, $ 144. But in spite of the 
variety of physical acts which it denotes, the word Restituere is 
univocal if we look at ite legal connotation, which is always the 
undoing of some wrong, the reinstatement of a person in the pos- 
session and enjoyment of a right. 

Exhibere is the production of a thing or person, and was usually 


1v. $ 138-170. ] QUORUM BONORUM. 601 


the preliminary of a vindication. Quem liberum hominem dolo malo 
retines exhibeas, Dig. 48, 29, 1. ‘The freeman whom you unlawfully 
detain I command you to produce.’ Qui quaeve in potestate Lucii 
Titii est, si is eave apud te est, dolove malo factum est quominus 
apud te esset, ita eum eamve exhibeas, Dig. 48, 30,1. ‘The son or 
daughter of Lucius Titius, who is subject to his power, and whom 
you detain or have fraudulently ceased to detain, I command you 
to produce. 

$ 144. The interdict Quorum bonorum, according to Savigny, 
was the remedy whereby a successor, whether civil or praetorian, 
and, if praetorian, whether contra tabulas or secundum tabulas or 
ab intestato, having already, in response to his demand (agnitio) 
of the succession, obtained from the praetor the formal grant 
(datio) of bonorum possessio, maintained his title thereto before 
the tribunals if he met with opposition; just as hereditatis petitio 
was the remedy whereby the civil successor could have maintained 
& corresponding claim to the hereditas. 

The terms of the interdict ran as follows: Quorum bonorum ex 
edicto meo illi possessio data est, quod de his bonis pro herede aut 
pro possessore possides, possideresve si nihil usucaptum esset, 
quodque dolo malo fecisti ut desineres possidere, id illi restituas, 
Dig. 43, 2, 1. ‘ Whatever portion of the goods, granted in pur- 
suance of my edict to be possessed by such and such a one, thou 
possessest as successor or as unentitled occupant, or wouldest so 
possess but for usucapion, or hast fraudulently ceased to possess, 
such portion do thou deliver up to such a one.’ 

Quorum bonorum was the proper remedy against two classes of 
adversary : (1) any one who claimed as successor (pro herede), either 
under the praetorian edict, Dig, 5, 3, 11 pr., or as cestui que trust 
(fideicommissarius), Dig. 5, 8, 20, 18, or at civil law; and (2) 
praedo, or any one who seized and held without title, or merely 
by title of occupancy (pro possessore), in virtue of the anomalous 
law which permitted strangers to seize vacant hereditaments, and 
convert possession into ownership by a short period of usucapion, 
2 § 52. If the adversary claimed on any other title, e.g. pro empto 
or pro donato, the proper remedy of bonorum possessor or heres 
was not by Quorum bonorum nor by Hereditatis petitio, but by 
an ordinary Real action (Rei vindieatio) The words * possideresve 
si nihil usucaptum foret? are a trace of the Sc. Juventianum, 
which relieved the grantee of possession against usucapion, i.e. 





602 DE ACTIONIBUS. [rv. $$ 138-170. 


which rescinded the usucapion, and allowed Quorum bonorum to 
be brought even after usucapion had been completed and the bona 
fide putative successor or the mala fide unentitled occupant no 
longer possessed pro herede or pro possessore, but pro suo, 2 § 57. 
{According to Puchta, usucapion was always unavailing against 
Quorum bonorum, and the effect of Sc. Juventianum was only to 
assist the heir at civil law, by inserting in the formula of Here- 
ditatis petitio a clause that had always as a matter of course been 
inserted in the interdict Quorum bonorum.) 

According, then, to Savigny, Quorum bonorum was a definitive 
suit in matters of succession when the plaintiff, instead of claiming 
hereditas in reliance on jus civile, claimed bonorum possessio in 
reliance on jus praetorium. But the prevalent opinion is that 
of Vangerow, that Quorum bonorum was merely a summary and 
provisional procedure for obtaining possession pending the defini- 
tive suit for the succession. Such possession was defeasible (sine 
re) by an adverse decision of the final suit, which, if the succes- 
sion was by civil law, would be hereditatis petitio; if it was 
merely praetorian, as founded on cognatio &c., hereditatis petitio 
possessoria, Dig. 5, 5, 1. In support of this view, it may be ob- 
served that on Savigny's hypothesis no satisfactory account can 
be given of the nature of hereditatis petitio possessoria. 

$ 148. In the real actions of statute-process or the eldest system 
the procedure for awarding provisional possession during the 
pendency of a suit was called Vindiciae dicendae, Gellius 20, 10, 
$ 16. In the later methods of real action, vindicatio per sponsionem 
or per formulam petitoriam, Vindiciae dicendae was apparently 
superseded by the interdicts Utrubi and Uti possidetis; which, 
accordingly, would bear the same relation to vindicatio that Quorum 
bonorum bore to hereditatis petitio. 

As these interdicts were required to determine the question 
who should have possession pending the vindicatio, so it is clear 
that a third anterior proceeding would be necessary to determine 
who should have provisional possession during the pendency of 
litigation on the interdict: and similarly we might imagine a 
fourth, a fifth, and in fact an infinite series of anterior proceedings 
to be required. We shall find however that this regressus ad 
infinitum was stopped at the third term by means of an auction 
(fructus licitatio), § 166, a process of a very summary character. 
If a party attempted to defeat this provision by refusing to take 





Iv. $$ 138-170. ] UTRUBI. 603 


part in the auction, his opponent was aided by interdicta Secundaria, 
$170. It may seem that opposition to the issue of interdicta 
Secundaria would again open out a vista of an infinite series of 
anterior steps; but, doubtless, the only means of preventing the 
issue of interdictum Secundarium was an instant consent to co- 
operation in fructus licitatio. 

Fructus licitatio was obsolete in the time of Justinian : in modern 
Italy and Germany it is superseded by a process called Possessorrum 
Summarissimum ; in which the judge on a brief inquisition pro- 
visionally awards possession to the party who proves the last act 
of undisturbed possession. 

The proceedings in a double interdict seem complicated, em- 
bracing fourteen stages: (1) interdictum redditum, (2) vis ex 
conventu, (3, 4, 5, 6) sponsiones and restipulationes, (7, 8, 9, 10) 
sponsionum and restipulationum formulae, (11) fructus licitatio, 
(12) fructuaria stipulatio, (13) Cascellianum judicium, (14) either 
fructuariae stipulationis formula or fructuarium judicium. But 
the decision of all of the six actions would depend on the result of 
the trial of one of the sponsionum formulae. The interdict Uti 
possidetis was of the following form: Uti eas aedes, quibus de 
agitur, nec vi nec clam nec precario alter ab altero possidetis, 
quominus ita possideatis, vim fieri veto. De cloacis hoc inter- 
dictum non dabo: neque pluris quam quanti res erit, intra 
annum quo primum experiundi potestas fuerit, agere permittam, 
Dig. 48, 17, 1. ‘Whichever party has possession of the house in 
question, without violence, clandestinity, or permission in respect 
of the adversary, the violent disturbance of his possession I pro- 
hibit. Sewers are not included in this interdict. The value of the 
thing in dispute and no more may be recovered within the first 
year of days available for procedure (annus utilis)? The right 
of the possessor was not affected if his possession was commenced 
by violence, clandestinity, or permission in respect of any other 
person than the defendant. Inst. 4, 15, 4. 

The interdict Utrubi was of the following form: Utrubi hic 
homo quo de agitur majore parte hujusce anni fuit, quominus is 
eum ducat, vim fieri veto, Dig. 43,31. ‘Whichever party had pos- 
session of the slave in question during the greater part of the pre- 
ceding year, the violent hindrance of his prehension and abduction 
of the slave I prohibit.’ The same exceptions of violence, clandes- 
tinity, and permission, as in the interdict Uti possidetis, were either 


604 DE ACTIONIBUS. [rv. $$ 138-170. 


expressed or understood. Before Justinian's time Utrubi had been 
assimilated to Uti possidetis, that is, comparative length of posses- 
sion within the year was made immaterial, Inst. 4, 15, 4. ‘The 
modern terms are different; both interdicte, so far as possession is 
a title to redress, are assimilated ; and in respect both of movables 
and of immovables judgment goes for him who proves unimpeach- 
able possession at the moment of commencing the action.’ 

Utrubi and Uti possidetis are classed by Gaius under the head 
of interdicta Retinendae possessionis. This was their category 
when either party succeeded in proving an unimpeachable posses- 
sion: but the exceptions, vi clam aut precario, when sustained by 
the non-possessor, brought Utrubi and Uti possidetis under the 
eategory of interdicts Recuperandae possessionis. If, that is to say, 
a litigant proved that he had actual possession, but his possession 
was shown to be vitiated by violence, secrecy, or permission, he was 
dispossessed and his opponent was reinstated in possession, Dig. 
48, 17, 8, pr. Utrubi was clearly a recuperatory interdict in its 
original form: but it was so equally, in virtue of the exceptions, 
after its form had been assimilated to that of Uti possidetis. 
Baron, $ 120. 

§ 154. The interdict Unde vi (or De vi) had two forms, one of 
which is called by Cicero interdictum quotidianum, and redressed 
eases of ordinary violence (vis quotidiana), while the other was 
invoked in cases of armed violence (vis armata). The exceptio 
vitiosae possessionis could be pleaded as a defence to the former, 
but not to the latter, interdict. 

The interdictum quotidianum has been thus restored by Keller 
from indications in Cicero, Pro Caecina and Pro Tullio: Unde tu 
Numeri Negidi aut familia aut procurator tuus Aulum Agerium aut 
familiam aut procuratorem illius in hoc anno vi dejecisti, qua de re 
agitur, cum ille possideret, quod nec vi nec clam nec precario a te 
possideret, eo restituas.  *In the place whence thou, Numerius 
Negidius, thy slaves or procurator, hast this year violently ousted 
Aulus Agerius, his slaves or procurator, as he alleges, which he 
possessed without violence, clandestinity, or permission in respect 
of thee, in that place do thou reinstate him.’ 

The interdict De vi armata may be restored as follows: Unde tu 
Numeri Negidi aut familia aut procurator tuus Aulum Agerium aut 
familiam aut procuratorem illius vi hominibus coactis armatisve 
dejecisti, qua de re agitur, eo restituas. ‘In the place whence thou, 


1v. $$ 138-170.] UNDE VI. 603 


Numerius Negidius, thy slaves or procurator, hast violently ousted 
Aulus Agerius, his slaves or procurator, by men assembled or armed, 
in that place do thou reinstate him.’ This differed from the ordinary 
interdiet by the omission of the exceptions, and the omission of 
limitation to a year. 

The interdict Unde vi only applied to immovables. Illud utique 
in dubium non venit, interdictum hoc ad res mobiles non pertinere, 
Dig. 48, 16, 16. ‘It is certain that this interdict is not available 
for disseisin of movables.’ 

The right of the defendant in the ordinary interdict (quotidianum) 
to plead by way of exception the vices (violence, secrecy, permission) 
by which the'plaintiff's possession was tainted, was apparently deemed 
to be abrogated by a constitution of Valentinian, A.D. 389, Cod. 8, 4, 7. 
‘Whoever dares to seize by violence things in the possession of the 
treasury or of private persons without waiting for a judicial order, 
shall restore possession, and, if he is proprietor, shall forfeit his 
property, if he is not proprietor, shall forfeit the value. This was 
declared to apply both to movables and immovables, Inst. 4, 2, 1. 
In accordance with the spirit of this constitution, the dispossessor 
was no longer allowed to plead the exceptions in the old form of 
the interdict, and they are omitted in the new form which we find 
in the Digest: Unde tu illum vi dejecisti aut familia tua dejecit, 
de eo quaeque ille tunc ibi habuit tantummodo intra annum, post 
annum de eo quod ad eum qui vi dejecit pervenerit, judicium dabo, 
Dig. 48, 16,1. ‘The land (or house) whence thou or thy slaves 
hast violently ousted such a one, and the movables which he had 
therein, shall be recoverable by action within & year; after the 
expiration of a year he shall only recover what came into the 
hands of the dispossessor. That is to say, the distinction between 
vis armata and vis quotidiana was no longer recognized. Savigny's 
opinion, that in virtue of this constitution the interdict Unde vi 
became applicable to movables as well as to immovables, is not 
generally adopted. 

Although violence, armed or unarmed, was prohibited to be em- 
ployed for the recovery of possession even from possessor vitiosus, 
yet to repel violence by violence in the defence of possession was 
permitted, Dig. 43, 16,8, 9. ‘An armed aggressor may be lawfully 
repelled by arms, but this must be immediately, and we may not 
only resist disseisin, but eject the disseisor, provided that no interval 
has elapsed.’ Ibid. 17. ‘A possessor who is violently disseised and 


606 DE ACTIONIBUS. [1v. §§ 138-170. 


recovers seisin by immediate violence, rather restores his former 
position than possesses by violence. Therefore, if I oust you by 
violence, and am immediately ousted by you, and then oust you 
again, you may have the interdict Unde vi.’ 

We have seen that Uti possidetis and Utrubi, though called 
interdicts Retinendae possessionis, were also in effect interdicts 
Recuperandae possessionis whenever any of the vitia possessionis 
was established: that if the possession of the actual possessor was 
tainted with one of three vices, if it was not adverse (open and 
unauthorized) and commenced without violence (vi, clam, aut 
precario) then his adversary recovered possession. What, then, it 
may be asked, was the use of a distinct mterdict Recuperandae 
possessionis, the interdict Unde vi, which, like the Uti possidetis, 
was only available for a year? The answer is, that Uti possidetis 
only restored possession when the dispossessor was in present pos- 
session; it gave no redress when a third party was the present 
possessor: in such cases the party dispossessed required a different 
remedy, and this was given him in the interdict Unde vi, which 
could be maintained against a dispossessor whether the latter con- 
tinued in possession or not. Further, by Uti possidetis the inter- 
mediate profits (fructus) were only recoverable from the commence- 
ment of the suit, by Unde vi from the time of the ejectment; and 
the remedy of the disseisee by Uti possidetis was barred by the 
vices of his own possession, not so his remedy by Unde vi, though, 
as we see by the text, this only applied to vis armata, when Gaius 
wrote. 

As violent dispossession was remedied by the interdict Unde vi, 
so other interdicts remedied dispossession whose inception was 
clandestine or permissive. An interdict De clandestina possessione 
seems to be mentioned, Dig. 10, 3, 7, 5. But it would scarcely be 
required in the case of immovables, for as a possessor was not 
disseised until he had notice of the invasion, he could immediately 
by attempting an entry convert the clandestine into a violent dis- 
possession. Nor would it be required for movables, for clandestine 
dispossession of a movable might be redressed by Utrubi combined, 
perhaps, with an exhibitory interdict or order of production. Ac- 
cordingly, it is generally supposed that no special interdict against 
clandestine dispossession ever existed, 

The interdict De precario was in these terms; Quod precario ab 
illo habes, aut dolo malo fecisti ut desineres habere, qua de re agitur, 


1v. $$ 138-170.] DEMOLITORIUM. 607 


id illi restituas, Dig. 43, 26, 2. ‘The possession of the thing in 
question which thou holdest by the permission of such a one, or 
hast fraudulently ceased to hold, do thou restore to him.’ 

Before we quit this topic we may take the opportunity of con- 
sidering some of the respects in which the disposition called Pre- 
carium differed from a closely allied institution, the contract called 
Commodatum. | 

(1) Precario rogans (the precarious tenant) generally had pos- 
session: Commodatarius (the borrower) never had more than de- 
tention. 

(2) The obligation in Precarium is purely unilateral and on the 
side of precario rogans.  Precario dans (the grantor of precarious 
tenancy) is under no obligation, not even the semi-bilateral obli- 
gation for impensae &c., which is incumbent on Commodans (the 
lender). 

(3) Precario rogans is not, like Commodatarius, responsible for 
diligentia, Dig. 43, 26, 8, 3. 

At a late period of Roman law Precarium was so far regarded as 
a contractual obligation that Precario dans could recover by an 
actio praescriptis verbis, Dig. 43, 26, 2, 2, and 19, 2. Thus Pre- 
cario dans had two remedies, an action on delicet (interdictum de 
precario) for such, we shall see, was the nature of the possessory 
interdicts, and an action on contract: Commodans had only his 
action on contract; for interdicts, as we have stated, were not em- 
ployed in matters of contractual obligation. 

§ 156. Paulus mentioned a fourth class of interdicts, namely, 
those for either acquiring or recovering possession. Sunt etiam 
interdicta duplicia tam recuperandae quam adipiscendae possessionis, 
Dig. 43,1, 2, 3. These are the restitutory interdicts, Quem fundum, 
Quam hereditatem, Quem usumfructum, which have been already 
quoted, § 89, whereby, if the defendant in a real action refused to 
give security judicatum solvi, possession was transferred to the plain- 
tiff, who in some cases would acquire, in others recover possession. 
Quem fundum was the interdict employed in Vindieatio: Quam 
hereditatem in Hereditatis petitio: Quem usumfructum in the vin- 
dieation of a Personal servitude. In interdict procedure, instituted 
for the retention of possession, analogous functions were performed 
by further interdicts called interdicta Secundaria, $ 170. 

Pending litigation respecting Urban servitudes the plaintiff was 
protected by a peculiar institution, the interdictum Demolitorium 


608 DE ACTIONIBUS. [rv. $$ 138-170. 


based on Operis novi nuntiatio, the nature of which demands a 
passing notice. If A, a proprietor or owner of some real right 
(mortgagee, emphyteuta, superficiarius), was aggrieved by some 
architectural innovation (aedificatio, demolitio) on the part of B, 
whereby an urban servitude over the tenement of A was asserted 
or some urban servitude [jus habendi or jus prohibendi] belonging 
to A, as owner of a dominant tenement, was violated, A was 
entitled to serve a formal inhibition or private injunction on B 
(prohibitio, operis novi nuntiatio) summoning him to desist from 
the innovation. On this summons B was bound to desist from his 
work until he either obtained from the praetor a dissolution or dis- 
charge of the summons (remissio, missam facere nuntiationem): 
or entered into a satisdatio or cautio de demoliendo, security that 
the structure should be demolished in the event of A as plaintiff 
succeeding in a future actio Negatoria or Confessoria, i. e. establish- 
ing his own jus prohibendi, which would be the same as disproving 
B's jus aedificandi. If without obtaining such remissio or giving 
such cautio B persisted in his work, he was compelled to demolish 
it by the interdictum Demolitorium. If he desisted from the 
work for the present, but refused to oppose A's suit in the regular 
course by entering into satisdatio de re defendenda, it was the duty 
of the judge to compel him to enter into a stipulation that he 
would not again attempt to build before he established his own jus 
aedificandi, or disproved A's jus prohibendi, as plaintiff in a suit. 
This would be actio negatoria of a jus altius non tollendi, if he 
denied that he was ever under an urban servitude to the tenement 
of A: actio confessoria of jus altius tollendi, if he affirmed that the 
servitude was extinguished by usucapio libertatis, Dig. 39, 1, 15: 
or some other actio confessoria if he claimed a dominant servitude 
over the tenement of A. 

Pending disputes on wrongs relating to land a similar function 
was discharged by the interdictum Quod vi aut clam. On a pro- 
hibitio from a neighbour, who might have a real right or be a 
mere lessee, prohibitus was obliged to desist from any agricultural 
innovation (ploughing up pasture, cutting trees, polluting streams, 
&c.) until he offered security (satisdatio judicio sisti) in any suit in 
which he might be made defendant, Dig. 48, 24, 8, 5; or proved 
by way of exceptio his jus faciendi, or by way of Negation, dis- 
proved his neighbour’s jus prohibendi, as plaintiff in some real 
action or, if the opus was on his own land, in Uti possidetis, Dig. 








rv. $$ 138-170.] UTI POSSIDETIS. 609 


48, 17, 8, 2. If he persisted in his operation in spite of the 
prohibitio, or avoided prohibitio by omittmg to give notice 
to the party interested, the interdictum Quod vi aut clam com- 
pelled him to efface it and to pay damages for the harm it 
occasioned. 

The interdicts which Gaius calls double are called by Ulpian 
mixed, Dig. 44, 7, 87, 1. * Mixed. actions are those wherein each 
party is both plaintiff and defendant, as the action for tracing 
boundaries, for partition of an inheritance, for dissolution of joint 
ownership, and the interdicts Uti possidetis and Utrubi' The 
effect of this duplicity or mixture of characters was that the plain- 
tiff, as well as the defendant, was liable to condemnation and 
absolution. According to Justinian, the three personal actions 
just named are called Mixed because they involve questions both 
of property and obligation, Mixtam causam obtinere videntur, tam 
in rem quam in personam, Inst. 4, 6, 20. Another effect of the 
duplicity of the interdicts was, as we shall presently see, to increase 
the number of stipulations in the proceeding by Sponsio. 

In the system of statute-process (legis aetio) Vindicatio was a 
judicium duplex. The contention of the defendant was not merely 
& negation of the plaintiff's claim, but also an affirmation of the 
defendant's claim, a contravindication. Praetor interrogat eum qui 
cedit an contravindicet, 2 $ 24; cf. 46$ 16. It was not necessary 
that the cross claims of the plaintiff and defendant should be 
identical in character. On the one side there might be a claim of 
status (libertas), on the other of property (dominica potestas), one 
party vindicating as free the person whom another claimed as slave : 
or one party vindicating the freedom of a person whom another, as 
transferee of patria potestas, claimed to be his bondsman (man- 
cipium); or one party asserting the independence (sui juris) of 
a person whom another claimed as fihus familias or as subject to 
patria potestas. 

Similarly under the legis actio procedrre Hereditatis petitio, 8 $ 
82 comm., would be judicium duplex; for Hereditatis petitio is a 
species of Vindicatio. 

Vindicatio and Hereditatis petitio are related to the actions 
Communi dividundo and Familiae herciscundae as wholes to parts : 
the former lay claim to integral ownership and integral succession 
where the latter merely claim partial ownership and partial suc- 
cession, Inst. 4, 6, 20. The former became judicia simplicia in the 

Rr 





610 DE ACTIONIBUS. [xv. $$ 138-170. 


later system of law, while the latter remained judicia duplicia. 
Thering, § 52. 

In English jurisprudence both parties are said to be equally 
plaintiffs and equally defendants in the actions called Quare impedit 
and Replevin. 

Uti possidetis was sometimes judicium simplex. We may dis- 
tinguish three applications of this procedure: 

(1) When both parties claim to be in actual possession and one 
of them is found to be truly in possession without a taint of vio- 
lence, secrecy, or permission, Uti possidetis is then really an 
interdictum Retinendae possessionis. | 

(2) When the possession of the aetual possessor is found to be 
vitiated by violence, secrecy, or permission, he is displaced, and 
the non-possessor is reinstated. Uti possidetis is then in substance 
and effect interdictum Recuperandae possessionis. In both of these 
cases it is judicium duplex. 

(3) Uti possidetis might further be brought against a defendant 
who made no contention that he himself was or ought to be in 
possession, but who was guilty of some disturbance or molestation 
of the possessor; e.g. by prohibitio : Qui colere fundum prohibetur, 
possidere prohibetur, Dig. 438, 17, 8, 4. Eum qui aedificare pro- 
hibeatur, possidere prohiberi, manifestum est, Dig. 41, 2, 52, 1. 
Etenim videris mihi possessionis controversiam facere, qui prohibes 
me uti mea possessione, Dig. 43, 17, 8, 2. In this case Uti possi- 
detis would be a judicium simplex. Uti possidetis in cases (2) and 
(3) is à genuine actio ex delicto. So it was nominally in case (1); 
but we shall see that here the delict might be merely fictitious (vis 
ex conventu). 

Savigny holds that No. (3) was the original application of Uti 
possidetis; and that Nos. (1) and (2) were subsequent extensions of 
its employment and due to jurisprudence, i.e. the ingenuity of the 
jurists: the reverse is the prevalent doctrine, Baron, $ 120. 

$ 168. The formula arbitraria in Unde vi must have contained 
the clause, Unless the defendant obey the judge’s order of resti- 
tution; the rest is uncertain. The analogy of the other interdicta 
suggests something to the following effect: If it apppear that the 
defendant has disobeyed the praetor's order to reinstate the plain- 
tiff, then, unless the defendant comply with the judge's order of 
restitution, do thou, judge, condemn him in all the damages the 
plaintiff shall have sustained. 





1v. $$ 138-170.] UTI POSSIDETIS. 611 


The mode of restitution would be prescribed by the judex, who 
would probably require the restitution of all movables that had 
been removed, though these were not mentioned in the original 
form of the interdict, $ 154. 

The jurists who considered that a defendant who desired a 
formula arbitraria was guilty by confession of the delict laid to his 
charge, must have supposed that the only function of the judex 
in this case was assessment of damages (litis aestimatio), Dig. 
9, 2, 25, 2. 

$ 165. Huschke supposes that the sponsio on Quorum bonorum 
was of the following form: If the praetor Quintus Caepio in ac- 
cordance with his edict has granted me possession of the goods left 
by Turpilia, and if in contravention of his edict thou hast not 
restored to me the portion of those goods which thou possessest as 
successor or as occupant, or hast fraudulently ceased to possess; 
dost thou promise to pay me such and such a sum? I promise. 

The stricti juris action based on this stipulatio would be followed 
by another, which was doubtless called judicium Secutorium, $ 166 a. 
. The latter would probably contain an intentio in factum concepta, 
of the form: Si Aulus Agerius Numerium Negidium sponsione 
vicit, and a formula arbitraria such as that already described for 
the non-penal procedure: Ni Numerius Negidius Aulo Agerio 
bona illa judicis arbitrio restituat, quanti ea res erit, judex, Nume- 
rum Negidium Aulo Agerio condemna. 

After the first appearance before the praetor (in jus vocatio) and 
the issue of the interdict (interdictum redditum or editum) it would 
be necessary to wait a certain time to see whether it was obeyed 
or disobeyed by the defendant; and if it was disobeyed, there would 
be at any time within the period of a year a second in jus vocatio, 
or at least a reappearance in jure secured by a vadimonium which 
the parties entered into at the time of their first appearance, for the 
nomination of the judex and the delivery of the formula arbitraria, 
if the procedure was non-penal; or for the sponsio and delivery of 
the formulas of action on the sponsio and the judicium secutorium, 
if the procedure was penal. 

The interdict or command of the magistrate, like the law or 
command of the legislator, has two members (protasis or minor 
premiss, and apodosis or conclusion) ; or two terms, an antecedent 
(a title expressed by the middle term B) and a consequent (an obli- 
gation expressed by the major term A). The antecedent term is 

RIJO 











612 DE ACTIONIBUS. [rv. $$ 138-170. 


usually introduced by a relative (Quorum bonorum, Unde dejecisti, 
Uti possidetis, &c.) equivalent to a 67: accordingly any interdict 
may be paraphrased by the proposition : If such and such antecedent 
title [B, middle term] exists, then thou [C, minor term] art under 
such and such consequent obligation [A, major term]: and this 
antecedent, simple as it may appear, is usually analysable into a 
variety of conditions. Thus in Quorum bonorum the antecedent 
clause and question for the judex is not only whether certain goods 
are detained by the defendant, but also whether the plaintiff had 
obtained a grant of possession of these goods, whether such grant 
was rightfully obtained, and in accordance with the provisions of 
the edict, &c. 

§ 166. From the two sponsiones and two restipulationes which 
are mentioned, it appears that Gaius is now speaking of double 
interdicts, and from the words eum fundum easve aedes, § 166 a, it 
appears that he is speaking not of Utrubi but of Uti possidetis. 

After a first in jus vocatio in which an interdict Uti possidetis 
had been obtained, there took place, by prearrangement, a molesta- 
tion of one of the litigants by the other. In the disorderly begin- 
nings of society this molestation was doubtless often in reality 
a turbulent defiance of the magisterial interdict: but in more 
orderly periods both parties would be desirous of trying their nght 
by legal course, and the steps taken by both would be prearranged 
with a view of satisfying the conditions of interdict procedure (vis 
ex conventu). So a trespass, or at least an act that contains many of 
the elements of a trespass, is often arranged to be committed for the 
purpose of enabling parties to try a right before English tribunals. 
Cf. Cic. pro Caec. 1, 7, 8, 10, 11; pro Tull. 8. 

It is probable that the lacuna preceding this paragraph contained 
an explanation of vis ex conventu and of other parts of the pro- 
cedure in interdicta duplicia. 

After the vis ex conventu had been simulated, there took place 
a second in jus vocatio, or reappearance in jure in pursuance of the 
vadimonium, at which the parties entered into five different 
stipulations. 

Just as interdict procedure was necessary in order to determine 
which litigant should have interim possession pending the vindi- 
catio, so It was necessary to determine who should have interim 
possession pending a possibly protracted interdict procedure. This 
was accomplished by means of Fructus licitatio, which took place 








rv. $$ 138-170.] UTI POSSIDETIS. 613 


in the second appearance before the praetor, and was followed 
by either (a) the Fructuaria stipulatio, or satisdatio judicatum 
solvi. 

Each party then wagered a penal sum in two characters, for each 
party was both plaintiff and defendant: and, as a sponsio was 
a unilateral contract, in order to produce a bilateral contract, that 
is, to bind both parties and constitute a single bet or wager in the 
modern sense of the term, it was necessary to have two stipula- 
tions, that is, a sponsio and a restipulatio. For the purpose, there- 
fore, of making two wagers the parties entered into four stipu- 
lations (two sponsions and two restipulations); i.e. (4) one sponsio 
and (c) one restipulatio in which a litigant was promisor and pro- 
misee as plaintiff, and (7) a second sponsio and (e) a second resti- 
pulatio in which he was promisor and promisee as defendant. 
The sponsio would be a stipulation to the following effect: Si 
adversus edictum praetoris possidenti mihi vis a te facta est, tot 
nummos dare spondes? Spondeo: the restipulatio to the following 
effect : Si adversus edictum praetoris possidenti tibi vis a me facta 
non est, tot nummos dare spondes? Spondeo. Thereby each party 
would be bound to pay, or entitled to receive, two penal sums, 
according as the actions brought on these four stipulations decided 
the issue which the stipulations raised. 

A judex was then appointed who tried the four actions. 

Then if the victor in the four actions had not been the higher 
bidder at the Licitatio, the judex decided a fifth and sixth action: 
namely one called judicium Secutorium or Cascellianum, which had 
& formula arbitraria, and whereby possession of the movable or 
immovable and its fruits was recovered from the higher bidder; 
and another on (a) the Fructuaria stipulatio, to recover from the 
higher bidder a penal sum equal to the value of the fructus. 

Instead of suing on (a) the Fructuaria stipulatio the victor had 
the option of bringing judicium Secutorium for the recovery of this 
penal sum, and then he was protected against the event of his op- 
ponent's insolvency by sureties (satisdatio) It may be asked what 
compensating disadvantage of this course should ever induce the 
vietor to sue on (a) Fructuaria stipulatio. Perhaps, as Krueger 
suggests, if he sued for the penal sum by Secutorium with satis- 
datio, then when he brought Cascellianum he only recovered the 
Res without the interim fructus. The satisdatio would thus in- 
crease his certainty of obtaining the amount of the penal sum, but 





614 DE ACTIONIBUS. [rv. $$ 138—170. 


would diminish by the value of the fructus the total amount 
recovered. 

Corresponding to the penal sum incurred by Fructus licitatio, and 
secured by (a) Fructuaria stipulatio or Satisdatio of the litigant 
who obtains possession pending interdict procedure, was the liability 
in twice the value of the fructus incurred by the litigant who 
obtained possession by Vindiciae dicendae pending statute-process. 
Such at least appears to be the import of a partly conjectural frag- 
ment of the Twelve Tables: Si vindiciam falsam tulit, stlitis et 
vindiciarum praetor arbitros tres dato: eorum arbitrio possessor 
fructus duplione damnum decidito. Festus. ‘When temporary 
possession has been wrongfully ‘obtained, the question of property 
and the value of the fruits of possession shall be decided by three 
arbiters, by whose arbitration the wrongful possessor shall pay as 
a penalty twice the value of the fruits of possession to the true 
proprietor.’ 

§ 170. From this .paragraph it appears that as in Real actions 
the defendant who declined to give satisdatio judicatum solvi and 
thus impeded the unwinding of the process of vindicatio was 
deprived of possession by the interdicts Quem fundum, Quam 
hereditatem, Quem usumfructum, § 156 comm. ; so a suitor whose 
contumacious refusal to take the regular steps prevented interdict 
procedure from accomplishing its normal course was deprived of 
possession by interdicta Secundaria. 

The mention of vis (qui viM-non faciet) shows that, subsequent 
to the issue of the interdict and antecedent to further proceedings, 
one act of the forensic drama was a conventional ejectment (vis ex 
conventu); which may be identified with what is called Deductio 
quae moribus fit in suits by Sponsio, and perhaps with the Manuum 
consertio in Sacramentum, § 88 comm.,:§ 18 comm. 

The inquiry into the nature of PossEssiON has been purposely 
postponed hitherto in order not to interrupt the exposition by 
Gaius of the details of the possessory interdicts (Utrubi, Uti pos- 
sidetis, Unde v1); 1.e. those interdicts in which the fact of possession 
is itself a title to the continuance or restoration of possession. 

Possession may be defined as a relation which consists of two 
elements; Detention, or physical power over a thing, and Animus 
domini, a certain intention on the part of the detainer, the intention 
of holding it as proprietor, of deriving from it the benefits of 
ownership. "Theophilus, the colleague of Tribonian and author of 


rv. §§ 138-170.] POSSESSION. 615 


the Greek version of Justinian’s Institutes, says: véuerOal ears rd 
Vvxij 0eomó(ovros karéxew, 8, 89, 2. The meaning of this defini- 
tion will best appear from an examination of the instances in 
which according to the jurists Possession does or does not exist; 
and in particular from the contrast of the cases where Possession 
is present with those where Detention is present but Possession 
absent. . 

Possession, as opposed to Detention, is called Possessio civilis, or 
simply Possessio, or juristic possession. 

Mere Detention is called Custodia, In possessione esse, Possessio 
naturalis. 

Juristic possession does not depend on a legal title to possess (jus 
possidendi) but on the fact of a man's having actual control of a 
thing with the intention of maintaining it. ‘Separata esse debet 
possessio a proprietate; fieri etenim potest, ut alter possessor sit, 
dominus non sit, alter dominus quidem sit, possessor vero non 
sit ; fieri potest, ut et possessor idem et dominus sit.’ Dig. 48, 17, 
1, 2. 

The characteristic of possessio civilis is the combination of De- 
tentio with the Animus domini: but in certain singular or ab- 
normal instances we shall find that this differentia is wanting, 
and detention in the name of another owner (alieno nomine), 
1.e. possessio naturalis, is treated as if it were juristic possession. 

Possession, accompanied with certain other extraneous conditions, 
namely Titulus and Bona fides, is transformed by a certain lapse 
of time into dominion ; and is called Usucapion-possession, 2 §§ 40— 
61 comm. Our present purpose is with Possession apart from these 
foreign elements: the Possession which, as protected by Utrubi, 
Uti possidetis, and Unde vi, is often called Interdict-possession. 

The slave and filiusfamilias had no possession. Quod ex justa 
causa corporaliter a servo tenetur id in peculio servi est, et pecu- 
lium quod servus civiliter quidem possidere non potest sed natu- 
raliter tenet, dominus creditur possidere, Dig. 41, 2, 24. * When 
a slave has detention on just grounds, the thing is in his peculium, 
and his master has possession, Qui in alena potestate sunt, rem 
peculiarem tenere possunt, habere et possidere non possunt, quia 
possessio non tantum corporis sed et juris est, Dig. 41, 2, 1. ‘A 
person under power has detention of a peculium but not possession, 
for the conditions of possession are not purely physical, but partly 
legal ;’ i.e. possession is not mere physical detention, but detention 


616 DE ACTIONIBUS. [rv. $$ 138-170. 


by a person who has certain rights, 2, 9, is independent. We must 
except the peculium castrense and quasi-castrense.  Filiusfamilias 
in castris adquisitum usucapiet, Dig. 41, 8. 4, 1. * What a filius- 
familias acquires m the field is converted by possession into pro- 
perty.' 

A manager or agent (procurator) has detention, not possession. 
Nee idem est possidere et alieno nomine possidere, nam is pos- 
sidet cujus nomine possidetur. Procurator alienge possessioni 
praestat ministerium, Dig. 41, 2, 18, pr. ‘ Possession differs from 
detention in the name of another, for he has possession of a thing 
in whose name it is held. An agent is the instrument of another 
person's possession. Generaliter quisquis omnino nostro nomine 
sit in possessione, veluti procurator, hospes, amicus, nos possidere 
videmur, Dig. 41, 2, 9. ‘The occupation of a procurator, guest, or 
friend in our name is our possession. Cf.2 6 95. Inst. 2, 9, 5. 

A borrower has only detention, the lender retains possession. 
Rei commodatae et possessionem et proprietatem retinemus, Dig. 
18, 6, 8. 

A lessee (conductor) has detention, the lessor (locator) possession. 
Et fructuarius, et colonus, et inquilinus sunt in praedio et tamen 
non possident, Dig. 48, 26, 6,2. ‘The usufructuary, tenant, and 
lodger have occupation, but not possession.’ Per colonos et inqui- 
linos aut servos nostros possidemus, Dig. 41, 2, 25, 1. ‘Our 
farmers, lodgers, and slaves are instrumenta of our possession." 

The Emphyteuta had possession as well as detention. Emphy- 
teusis was originally regarded as a species of locatio or venditio, 
but Zeno decided that it was a contract sui generis, and governed 
by its own rules, Inst. 3, 24, 3; cf. 3 $ 145. The relation of 
emphyteuta to dominus is analogous in some respects to the rela- 
tion of the freeholder or copyholder to the lord in feudal times. 
The emphyteuta was grantee of land in perpetuity, subject to pay- 
ment of a rent. The property remained in the grantor, but the 
emphyteuta had a jus in rem nearly amounting to property, for 
he could recover the land by vindication (real action) from any 
possessor and, as long as he paid his rent, from the grantor, Dig. 
6, 3, and he had the right of alienation. 'The dominus probably 
retained usucapion-possession. 

The mortgagor had by a legal fiction usucapion-possession, the 
mortgagee had interdict-possession. Qui pignori dedit ad usuca- 
pionem tantum possidet; quod ad reliquas omnes causas pertinet, 


rv. $$ 138-170.] QUASI-POSSESSION. 617 


qui accepit possidet, Dig. 41, 8, 16. The mortgagee could recover 
the pledge by actio in rem quasi Serviana, Inst. 4, 6, 7. Here, 
then, interdict-possession appears to be a jus in rem, for it is re- 
coverable by vindicatio. But instead of identifying the mortgagee's 
jus in rem and his interdict-possession, it is more correct to regard 
his jus in rem and his interdict-possession as distinct though con- 
current. In a hypotheca, that is, an agreement without delivery, 
the mortgagee acquired no possession. The fictitious usucapion- 
possession of the mortgagor was in the interest of the mortgagee, 
whose security against third persons would be corroborated by the 
usucapion of the mortgagor. 

The depositary has mere detention, the depositor has possession. 
The depositary only acquires possession in one case, that is, when 
he is made a stake-holder for this very purpose, Dig. 16, 3, 17. 
‘The property and possession of the thing deposited remain with 
the depositor, except when possession as well as detention is ex- 
pressly delivered to a stake-holder: for this is the only seques- 
tration where possession passes, the object being to interrupt the 
usucapion of both litigants.’ It seems, then, that in Sequestration 
not even usucapion-possession can be ascribed to the victor in the 
suit, Dig. 41, 2, 39. 

With Permissive occupation (precarium) possession passes, unless 
it is expressly agreed that only detention shall pass. Meminisse 
autem nos oportet, eum qui precario habet, etiam possidere, Dig. 
43, 26, 4, 1. ‘The occupant by permission has possession.’ Is 
qui rogavit ut precario in fundo moretur, non possidet, sed possessio 
apud eum qui concessit remanet, Dig. 43, 26, 6, 2. ‘The grantee 
of permissive detention does not possess, but possession remains 
with the grantor.’ The grantor always retained usucapion-posses- 
sion, Dig. 43, 26, 15, 4. 

The defendant in a vindicatio has detention but not necessarily 
possession, Dig. 6, 1, 9. * Although it is not expressed in his com- 
mission, the judex must see whether the defendant is in possession. 
Some think the same possession is required as for the interdicts ; 
and that, accordingly, the depositary, borrower, hirer, not having 
such possession, cannot be defendants in a vindication. But, in 
truth, whoever has detention and the means of restitution, may be 
made defendant in a vindication.’ In Personal actions the de- 
fendant is not called possessor. 

The owner of & servitude (jus in re) has no possession. Usu- 


618 DE ACTIONIBUS. [1v. $$ 138-170. 


fructuarius usucapere servum non potest quia non possidet, Dig. 41, 
1,10, 5. ‘The usufructuary has no usucapion, for he has no pos- 
session. Naturaliter videtur possidere is qui usumfructum habet, 
Dig. 41, 2, 12, pr. ‘The usufructuary has mere detention.’ 

[It would be a fallacy to argue that occupation is possession 
because it is naturalis possessio, just as it would be to argue 
that nine is ten because it is ten minus one, for an epithet 
sometimes detracts from, instead of adding to, the connotation of a 
word.] 

As the usufructuary has no possession, it follows a fortiori that 
the usuary has no possession. [Although the jus in re called usus 
must be distinguished from possession, the words usucapio, usurpatio 
show that in the older language usus = possessio. | 

Servitudes, though not the subject of possession, were the sub- 
ject of quasi-possession, § 139, e. g. Fundi possessionem vel usus- 
fructus quasi possessionem, Dig. 4, 6, 28, 2: Si quis longa quasi 
possessione jus aquae ducendae nactus sit, Dig. 8, 5, 10, pr.: which 
was called juris possessio in contradiction to true possession or 
corporis possessio ; Possessionem vel corporis vel juris, Dig. 43, 26, 
2,8: though if juris possessio was the proper name for possession 
of a fraction of property, possession that bore the same relation 
to the totality of property should have been called, not corporis 
possessio, but dominii possessio. 

The quasi-possession of servitudes, like the possession of corporeal 
things, was protected by interdicts. The possession of rural servi- 
tudes, such as iter, actus, via, jus aquae ducendae, &c., was pro- 
tected by special interdicts: e.g. Quo itinere actuque: privato, quo 
de agitur, vel via hoc anno nec vi nec clam nec precario ab illo usus 
es, quo minus ita utaris, vim fieri veto, Dig. 43, 19. ‘The foot- 
way, horse-way, carriage-way in question, which thou hast used 
within a year without violence, clandestinity, or permission in re- 
spect of the adversary, the violent hindrance of thy continuing to 
use I prohibit.’ 

. Urbane servitudes, whether positive, as jus tigni immittendi, or 
negative, as jus altius non tollendi, being closely connected with 
possession of an immovable, according to Savigny, were always 
protected by Uti possidetis: according to Vangerow, the pro- 
tection of the status quo was always by interdictum Quod vi 
aut clam or Operis novi nuntiatio, § 355. Personal servitudes, 
e.g. ususfructus, usus, fructus, were protected, according to cir- 


rv. $6 138-170.] POSSESSION. 619 


cumstances, by Uti possidetis, Utrubi, or Unde vi, with a special 
differentiation, which constituted them interdicta wa, Vat. 
fr. 90. 

Four of the cases we have mentioned, the possession of the 
emphyteuta, the mortgagee, the sequestrator, and the permissive 
holder, are anomalous; for possession is composed of two elements, 
physical detention and the purpose of exercising rights of owner- 
ship (animus domini), and none of these four possessors can be said 
to have the animus domini. In these four cases, and these alone, 
it is necessary to assume that the law recognized a derivative or 
transferred possession, in which one of the elements of original 
possession, the animus domini, is absent, and replaced by what may 
be called the animus alienam possessionem exercendi. 

In three of the above-mentioned cases usucapion-possession re- 
mained with the proprietor (the dominus agri emphyteuticarii, the 
mortgagor, the grantor of precarious tenancy), and only interdict- 
possession passed to the derivative possessor (the emphyteuta, the 
mortgagee, the grantee of precarious tenancy). In all the four cases 
(including Sequestration) the dominus lost the protection of the inter- 
dicts Retinendae possessionis, which were transferred to the deri- 
vative possessors. The grantor of precarious tenancy was protected, 
however, by the interdict De precario, an interdict Recuperandae 
possessionis. 

The Superficiarius (holder of a Real right (jus in re) to a house 
of which an owner of the ground is proprietor, e. g. a person who 
with permission of the landowner has built out of his own materials 
a house on another person's land) has, aecording to Savigny, only 
juris quasi-possessio : but this is inconsistent with the fact that 
he is protected by the interdicts Unde vi and De precario, Dig. 43, 
16, 1,5. According to Vangerow he has Derivative possession 
like the four above mentioned: but this is inconsistent with the 
fact that he is protected by the special interdict De superficiebus, 
while the owner of the soil retains the protection of Uti possidetis, 
Dig. 48, 17, 8, 7, which in Derivative possession is transferred to 
the Derivative possessor. The true doctrine, then, appears to be 
that Superfieiarius has Original possession of the house, though 
the landlord has possession of the soil, Baron, $ 188. Superficies 
would be vindicated by a formula in factum concepta: Si paret 
Aulum Agerium superficiem in perpetuum (or, in annos triginta) 
conduxisse. Savigny 5, p. 81. 


620 DE ACTIONIBUS. [rv. $$ 138-170. 


Ás possession consists of two elements, one corporeal and one 
mental, it is evident that it cannot be acquired by a purely mental 
act. Adipiscimur possessionem corpore et animo, neque per se 
animo aut per se corpore, Dig. 41, 2,8, 1. * We acquire possession 
by the conjunction of a corporeal and a mental act, and not by 
either separately. Neratius et Proculus solo animo non posse nos 
adquirere possessionem aiunt, si non antecedat naturalis possessio, 
Ibid. 3. * Intention alone does not suffice for acquiring possession 
unless preceded by detention) Detention necessarily implies not 
corporeal contact, but corporeal presence [except when a movable 
is by my order placed in my house during my absence], and is the 
physical power of dealing immediately with a subject and excluding 
any foreign agency. The acquisition of detention 1s Prehension 
which is never fictitious or symbolical, but a real physical change of 
relation. The continuance of possession requires a continuance of 
both the elements, which are essential to its acquisition, that is, 
both physical control and the intention of enjoying as proprietor. 
Fere quibuscunque modis obligamur iisdem in contrarium actis 
liberamur, quum quibus modis acquirimus, iisdem in contrarium 
actis amittimus. Ut igitur nulla possessio acquiri nisi animo et 
corpore potest, ita nulla amittitur nisi in qua utrumque (utrumque 
= alterutrum, or read utcunque or utrumcunque) in contrarium 
actum est, Dig. 50, 17, 153. ‘As obligation is dissolved by a 
reversal of the conditions under which it is created, so possession is 
lost by a reversal of the conditions under which it is acquired. As 
its acquisition demands the concurrence of a corporeal and a mental 
condition, so its termination requires the reversal of one or the 
other.’ Ejus quidem quod corpore nostro teneremus [dicam] 
possessionem amitti vel animo vel etiam corpore, Dig. 41, 2, 44. 
‘ When we detain in person, possession may be terminated by either 
a mental or a physical change.’ 

The physical condition, however, is not to be interpreted so 
strictly in the continuance of possession as in its commencement ; 
for continued possession permits a temporary suspension of physical 
control, and only requires the power of reproducing this relation 
at will: for instance, it is not lost if we have left a thing 
unintentionally in a forest, but remember the exact spot; or have 
_ stowed a thing in a place of security, but forgot for the moment 
where we put it; or abandon an Alpine pasture in winter, with the 
intention of revisiting it on the return of summer, Dig. 41, 2, 3, 13. 


rv. §§ 138-170.] POSSESSION. 621 


‘The possession of movables, excepting slaves, is terminated by loss 
of custody, or the power of reproducing at will natural detention.’ 
There was an exception in the case of slaves, for a fugitive slave 
was regarded as still in his master’s possession, and in the case of 
land, for a man did not lose possession of his land which had been 
invaded in his absence until he had notice of the invasion; that is 
to say, he retained possession in the interim solely by his mental 
disposition. Nam saltus hibernos et aestivos, quorum possessio 
retinetur animo, licet neque servum neque colonum ibi habeamus, 
quamvis saltus proposito possidendi fuerit alius ingressus, tamdiu 
priorem possidere dictum est, quamdiu possessionem ab alio occupa- 
tam ignoraret, Dig. 41, 2, 44. ‘When a winter or summer pasture, 
retained in possession without the instrumentality of slaves or 
tenants, solely by the mental relation, is invaded by a stranger, the 
prior possessor is not regarded as ousted from possession until he 
has notice of the invasion. It is by reference to this laxer inter- 
pretation and to these exceptions that we can understand the state- 
ment of Gaius, § 153, that possession may be retained without a 
continuance of corporeal detention. 

A guardian acting alone may acquire possession for an infant 
ward, that is, à child under the age of seven. Or possession may be 
acquired by Prehension on the part of the infant, while the Animus 
domini is supplied by tutoris auctoritas, Dig. 41, 2, 32, 2. This is 
exceptional, because in other matters tutoris auctoritas could only 
be given to a child infantia major, i.e. after completion of seven 
years of age. After seven years complete a child can acquire 
possession for itself either with or without the guardian's authority, 
8 $109; Dig. 26, 8. 9 pr. 

The possessor of a whole or a substance formed by the com- 
bination of various parts (universitas) does not separately possess 
with intention of ownership the various elemente of which it is 
composed. If, then, a man begins by possessing the whole and 
completes the usucapion of the whole before its dissolution into its 
component parts, the result will depend on the question whether 
all the parts belonged to the original proprietor of the whole or 
some of them belonged to a third person. If some of the materials 
belonged to & third proprietor, then, as these have not been se- 
parately possessed during the period of combination, the usucapion 
of them only begins to run after the dissolution of the whole, 
Dig. 6, 1, 28, 7; Dig. 41, 1, 7, 11. This rule is not a singularity 





622 DE ACTIONIBUS. [rv. $$ 138-170. 


of timber (Dig. 47, 8), but applies to all materials that have been 
combined into a whole, whether movable or immovable. 

If all the materials belonged to the proprietor of the whole, then 
he who acquires by usucapion the whole is proprietor of all the 
materials if they are subsequently separated, just as he would be 
if he had acquired property in the whole by tradition or any other 
valid form of alienation from the original proprietor. 

If the dissolution of the whole precedes the completion of 
usucapion, then the usucapion of the separate materials has to 
begin ab initio, Dig. 41, 3, 23 pr. Thus, if a man has possessed 
& house for nine years and six months, he will complete its usu- 
capion in another six months: but if any of the materials (windows, 
doors, columns, tiles) are separated, he will require three years to 
acquire them by usucapion as movables. 

If, on the contrary, a person begins by possessing the materials 
separately and after a time combines them into a whole, the ques- 
tion whether his usucapion of the materials continues to run 
depends on the principles which govern the /oss of possession. 
Possession is not lost by the absence of animus possidendi, but 
by a positive animus non possidendi. As this cannot here be 
alleged to exist, the usucapion of the materials will continue to run 
in spite of their combination and wil be completed as soon as if 
they had remained separate, Dig. 41, 8, 80, 1l. An exception is 
produced by the prohibition of the Twelve Tables to sue for build- 
ing materials as long as they form a portion of a house (tigna 
juncta aedibus, Dig. 47, 8): for, as agere non valenti non currit 
praescriptio, $110 comm., the usucapion of the timber must be sus- 
pended until the house from any cause is demolished. Inst. 2, 1, 
29. Vangerow, § 204. 

Having passed in review the nature of Possession and the form 
of the Possessory interdicts, we may now examine the often mooted 
question what is the relation of Possession to the classification of 
Rights as Real or Personal: to which division of actions, Real or 
Personal, is procedure by the Possessory interdicts to be assimi- 
lated ? 

The answer to this must begin by distinguishing mere Possession 
or Interdict-possession, from Possession associated with Titulus and 
Bona fides, or Usucapion-possession, The latter is incipient pro- 
perty, and is recoverable by actio in rem Publiciana, 2 $ 41; that 
is, is treated in respect of its remedy as if it were perfect property 








rv. §§ 138-170.] POSSESSION IS A REAL RIGHT. 623 


in respect of all persons except the owner: Usucapion-possession 
then is a Real right and is recoverable by a Real action. 

All interdict procedure belongs to the class of Personal actions 
enforcing obligations generated by delict, Modestinus, Dig. 44, 7, 
52, 6. ‘The ordinance of the magistrate is the source of an 
obligation in matters which the annual edict or the magistrate 
enjoins or forbids.’ Interdicta omnia, licet in rem videantur con- 
cepta, vi tamen ipsa personalia sunt, Ulpian, Dig. 43, 1, 8. ‘All 
interdicts, though impersonal (Real) in terms, are in substance 
Personal actions. | 

The party against whom judgment was given in interdict pro- 
cedure was found guilty of having committed a delict; that is, of 
having disobeyed the mandate contained in the interdict of the 
magistrate. Interdict procedure then belonged to the class of 
penal or delictual actions. That the possessory interdicts in par- 
ticular (Utrubi, Uti possidetis, and Unde vi) were classed with 
actions ex delicto, appears from the fact that they were only main- 
tainable against the wrong-doer within a year from their nativity, 
Dig. 48, 17, 1 pr.; Dig. 48, 16, 1 pr.; and were only maintainable 
against the heir of the wrong-doer so far as he was enriched by the 
wrong of his predecessor (quatenus ad eum pervenit .... ut, tamen 
luerum ei extorqueatur, Dig. 44, 7, 35 pr.), features which the inter- 
dicts have in common with other unilaterally penal actions. 

The right of à person who has been dispossessed to be reinstated 
in possession is a secondary right based on the violation of some 
primary right. What was the nature of that primary right? Ac- 
cording to Savigny it was the right of a freeman to be exempt from 
violence or corporeal molestation; not the right of a possessor to 
continue in possession. lle denies, that is, that the fact of Pos- 
session is a title investing the possessor with & Real right to con- 
tinue in possession; and bases the right of reinstatement on an- 
other Real right, one of the rights that we have called Primordial, 
the right to immunity from corporeal violence. 

The classical jurists seem to have evaded the question. The 
delict adjudicated upon in interdict procedure is in form the 
violation of a public duty, the duty of obedience to the magistrate. 
That it was in substance the violation of a private or civil right 
of a person who has been dispossessed did not appear on the face 
of the proceedings; and consequently the nature of this right had 
not to be investigated. 


624 DE ACTIONIBUS. [rv. $$ 138-170. 


Considering that possession involved a right against the world 
to freedom from molestation ; remembering, further, the old division 
of Real actions in English law into Possessory and Droitural, and 
observing the practical similarity of the Possessory interdicts to the 
Possessory real actions, an Englishman will be inclined to look upon 
Utrubi and Uti possidetis as practically Real actions and Posses- 
sion as practically a Real right. Unde vi implies a genuine tort, 
and may find its proper place among Personal actions ex maleficio. 
This arrangement has the authority of Vangerow, who introduces 
Utrubi and Uti possidetis along with Vindicatio into the law of 
Dominion, and makes these interdicts bear towards Vindicatio in 
the department of Ownership the relation which in the department 
of Succession Quorum bonorum bears to Petitio hereditatis. 

That in a given system of positive law what is in substance a 
Real action may assume the form of an action on Delict, we may 
convince ourselves by remembering some of the anomalies of the 
scheme of actions in English law. Trover and Detinue, which were 
brought to recover movable property, and therefore were in sub- 
stance Real actions, were kinds of Trespass, that is of action on 
delict: Assumpsit, the remedy for enforeing & simple contract, 
was externally & species of Trespass on the Case, another action on 
delict: and Ejectment, practically the sole real action for the re- 
covery of land, was theoretically another species of Trespass. 

The interdict, as originating action, bears some resemblance to 
2 now abolished institution of English law, the Original writ. But 
the Original writ was a mandate addressed by the head of adminis- 
tration or judicature to the sheriff; that is, to an executive officer, 
not, as the interdiet, to the individual suitor. Besides, this man- 
date of the crown required the sheriff to command a defendant 
to obey the crown by obeying the precepts of the legislator: the 
peculiarity of the interdict, as appears from the preceding account 
of its character, was that it formed of itself the whole of the law 
which the suitor was commanded to obey. The possessory inter- 
dicts, for instance, simple and meagre as they outwardly seemed, 
really comprised the whole law (the whole synthesis of Title and 
Obligation) that governed the subject of Possession. And the same 
is true of all the other interdicts which have been enumerated. 
This, as already observed, is apparently the true interpretation 
of the terms in which Gaius expresses the distinctive feature of 
Interdicts: certis ex causis Praetor aut Proconsul PRINCIPALITER 


iv. §§ 171-187.] DE POENA TEMERE LITIGANTIUM. 625 


auctoritatem suam finiepdis controversiis interponit, § 189: i.e. in 
issuing an interdict the magistrate exercised a principalis auctoritas, 
wielded a sovereign authority. 

As particular commands addressed to individuals, instead of 
universal commands addressed to the community, Interdicts may 
be regarded as survivals into a later and more organized stage 
of society of the THEMISTES (judgments anterior to law, the basis 
of future law) of the primeval ruler. See Maine’s Ancient Law, 
p. 4. 

But though originally the subjects of the Interdict had been 
omitted by the legislator, as matters rather of administration than 
of legislation ; yet after many individual Interdicts had been issued, 
and their conditions had been generalized by the authorities of 
jurisprudence; after moreover the rules which would be observed 
in their issue had been announced by the magistrate in his annual 
proclamation; the area of questions decided by Interdict was 
practically as much subject to law as any other department of 
Roman life. The code of rules promulgated by the magistrate 
(jus praetorium), being accepted by the state, was just as much 
law as if it had been enacted by the legislative assemblies: so that 
finally Interdict procedure differed from ordinary litigation merely 
by a fringe of form, that served as a memento of its historic origin, 
the extraordinary power of the magistrate in republican Rome: 
this fringe of form disappeared with the formulary process, the 
procedure in the domain once managed by Interdict being assimi- 
lated to the procedure employed in all the other departments of the 
code; thus Justinian finds it unnecessary to speak in his Institutes 
of the old forms of Interdict procedure. Inst. 4, 15, 8. 


DE POENA TEMERE LITIGANTIUM. 
$ 171. Modo | pecuniaria 





$171. We have now to notice 


poena modo iurisiurand?religione—| 
—.; eaque praetor——|——aduer- 
sus infitiantes ex quibusdam causis 
dupl? actio constituitur, ueluti si 
iudicati aut depensi aut damni in- 
iuriae aut legatorum per damna- 
tionem relictorum nomine agitur; 
ex quibusdam causis sponsionem 
facere permittitur, ueluti de pecunia 
certa credita et pecunia constituta; 
Bed certae quidem creditae pecuniae 





that in order to prevent vexatious 
litigation, both plaintiffs and de- 
fendants are restrained sometimes 
by pecuniary penalties, sometimes 
by the sanction of an oath which 
they are compelled to take, some- 
times by fear of suffering infamy. 
The defendant’s denial of his obli- 
gation is in certain cases punished 
by the duplication of the damages 
to be recovered. This occurs in an 


626 


tertiae partis, constitutae uero pe- 
cuniae partis dimidiae. 


$172. Quodsi neque sponsionis 
neque dupli actionis periculum ei 
cum quo agitur, tniungatur, ac ne 
statim quidem ab initio pluris quam 
Bimpli sit actio, permittit praetor 
iusiurandum exigere NON CALYM- 
NIAE CAV84 INFITIAS IRE. unde 
quamuis heredes uel qui heredum 
loco ha|bentur,—obligati sint, item 
feminae pupill:|que extmastur peri- 
culo sponsionis, iubet tamen eos 
lurare. 


§ 173. Statim autem ab initio 
pluris quam simpli actio est ueluti 
furti manifesti quadrupli, nec mani- 
festi dupli, concepti et oblati tripli. 
nam ex his causis et aliis quibus- 
dam, siue quis neget siue fateatur, 
pluris quam simpli est actio. 


$ 174. Actoris quoque calumnia 
coercetur modo calumniae iudicio, 
modo contrario, modo iureiurando, 
modo restipulatione. . 


$ 175. Et quidem calumniae iu- 
dicium aduersus omnes actiones 
locum habet, et est decimae partis, 


praeterquam quod aduersus adser- 
torem tertiae partis est. 


$ 176. Liberum est autem ei 
cum quo agitur, aut calumniae 
iudicium opponere aut iusiurandum 
exigere, non calumniae causa agere. 
§ 177. Contrarium autem iudi- 


DE ACTIONIBUS. 


[xv. $$ 171-187. 


action on & judgment debt, or for 
money paid by a sponsor, or for in- 
jurious damage, or for legacies left 
in the form of judgment debt. 
Sometimes a wager of a penal sum 


is permitted, as in an action of loan, 


or on a promise to pay a pre-existing 
debt, in the former case of one third 
of the sum in dispute, in the latter 
of one half. 

§ 172. In the absence of a penal 
wager, and of duplication of damages 
on denial, and of absolute multipli- 
cation of damages, the plaintiff is 
allowed by the Praetor to exact an 
oath from the defendant that his 
denial is conscientious. Accord- 
ingly, although successors and quasi- 
successors are always exempt from 
penalty, and women and wards are 
excused the compulsory wager, still 
they are required to take the oath 
of bona fides. 

§ 173. There is an absolute mul- 
tiplication of damages in various 
actions: in an action of manifest 
theft & quadruplication, for theft 
not manifest a duplication, for pos- 
session or obtrusion of stolen goods 
a triplication : for in these and some 
other actions the damages are a 
multiple of the plaintiffs loss, whe- 
ther the defendant denies or con- 
fesses the claim. 

§ 174. On the part of the plaintiff 
reckless litigation is checked by the 
action of dishonest litigation, by the 
Contrary action, by oath, and by re- 
stipulation. 

$175. The action of dishonest 
litigation lies against the plaintiff 
for the tenth part of the value he 
has claimed by action, except that 
in the case of an asserter of liberty 
it is a third. 

§ 176. It is optional to the de- 
fendant whether he brings an action 
of dishonest litigation or exacts an 
oath of bona fides. 

$ 177. The Contrary action only 





Iv. §§ 171-187.] DE POENA TEMERE LITIGANTIUM. 


cium ex certis causis constituitur, 
ueluti si iniuriarum agatur, et si 
cum muliere eo nomine agatur, 
quod dicatur uentris nomine in 
possessionem missa dolo malo ad 
alium possessionem transtulisse, et 
si quis eo nomine agat, quod dicat 
se a praetore in possessionem mis- 
sum ab alio quo admissum non 
esse. sed aduersus iniuriarum 
quidem actionem decimae partis 
datur, aduersus uero duas istas 
quintae. 

$178. Seuerior autem coercitio 
est per contrarium iudicium. nam 
calumniae iudicio decimae partis 
nemo damnatur nisi qui intellegit 
non recte se agere, sed uexandi 
aduersarii gratia actionem instituit, 
potiusque ex iudicis errore uel 
iniquitate uictoriam sperat quam 
ex causa ueritatis; calumnia enim 
in adfectu est, sicut. furti crimen. 
contrario uero iudicio omni modo 
damnatur actor, si causam non 
tenuerit, licet. aliqua opinione in- 
ductus crediderit se recte agere. 


§ 179. Vtique autem ex quibus 
causis contrario iudicio agi potest, 
etiam calumniae iudicium locum 
habet ; sed alterutro tantwm iudicio 
agere permittitur. qua ratione si 
iusiurandum de calumnia exactum 
fuerit, quemadmodum calumniae 
iudicium non datur, ita et con- 
irarium dari non debet. 

$ 180. Restipulationis quoque 
poena ex certis causis fieri solet ; 
et quemadmodum contrario iudicio 
omni modo condemnatur actor, si 
causam non tenuerit, nec requiritur 
an scierit non recte se agere, ita 
etiam restipulationis poena omni 
modo damnatur actor, si uincere 
non potuerit. 

$ 181. Qui autem restipulationis 
poenam patitur, ei neque calumniae 
iudicium opponitur, neque iuris- 


627 


lies in certain cases, for instance, 
against the plaintiff in an action of 
outrage, in an action against a widow 
put into possession in the name of 
her unborn child for fraudulent 
transfer of possession, or an action 
for non-admission of a person [judg- 
ment creditor, damni infecti no- 
mine, etc. Digest 42, 4.] sent into 
possession by the praetor. In the 
action of outrage it lies for the 
tenth of the damages, in the two 
latter actions for the fifth. 

§ 178. Of these repressive mea- 
sures the Contrary action is the 
more severe. A plaintiff sued for 
dishonest litigation, to forfeit the 
tenth of the value, must have known 
he had no right, and have sued to 
harass his adversary, in reliance on 
the error or iniquity of the judex, 
rather than on the justice of his 
cause; for dishonest litigation, like 
the crime of theft, implies intention. 
In the Contrary action he is con- 
demned if he merely loses the pre- 
vious action, even though he had 
grounds for believing in the good- 
ness of his cause. 

$179. Wherever the contrary 
action lies, the action for dishonest 
litigation also lies, but they are not 
concurrent; and an oath of bona 
fides excludes both the action of 
dishonest litigation and the Con- 
trary action. 


$180. The restipulatio also is 
confined to certain cases, and the 
plaintiff who loses his cause, as he 
is condemned in the contrary action, 
B0 he forfeits the penalty of the 
restipulatio, even though he sued 
with bona fides. 


$ 181. Therestipulatio precludes 
a party from suing for dishonest 
litigation, from exacting the oath 


882 








628 


iurandi religio emiungitur; nam 
contrarium iudicium ex his causis 
locum non habere palam est. 

§ 182. Quibusdam iudiciis dam- 
nati ignominiosi fiunt, ueluti furti, 
ui bonorum raptorum, iniuriarum ; 
item pro socio, fiduciae, tutelae, 
mandati, depositi. sed furti aut 
ui (bonorum) raptorum aut iniuri- 
arum non solum damnati notantur 
ignominia, sed etiam pacti, wt in 
edicto praetoris scriptum est; et 
recte: plurimum enim interest, 
utrum ex delicto aliquis an ex 
contractu debitor sit. nec (amen 
ulla parte edicti id ipsum nomina- 
tim exprimitur, ut aliquis igno- 
miniosus sit; sed qui prohibetur 
et pro alio postulare et cognstorem 
dare procuratoremue habere, item 
(pro)curatorio aut cogniforio no- 
mine iudicio interuenire, ignomini- 
osus esse dicitur. 

$ 183. In summa sciendum est 
eum qui cum aliquo consistere uelit, 
(in tus wocare) oportere et eum 
qui uocatus est, si non uenerit, 
poenam ex edicto praetoris com- 
mittere. quasdam tamen personas 
sine permissu praetoris in ius uo- 
care non licet, ueluti parentes pa- 
tronos patronas, item liberos et 
parentes patroni patronaeue; et in 
eum qui aduersus ea egerit, poena 
constituitur. 


$ 184. Cum autem in 1us uocatus 
fuerit aduersarius, neque eo die 
finiri potuerit negotium, uadi- 
monium ei faciendum est, id est 
ut promittat se certo die sisti. 

$ 185. Fiunt autem uadimonia 
quibusdam ex causis pura, id est 
sine satisdatione, quibusdam cum 
gatisdatione, quibusdam iureiurando, 
quibusdam recuperatoribus suppo- 
sitis, id est ut qui non steterit, is 
protinus a recuperatoribus in sum- 
mam uadimoniicondemnetur; eaque 


DE ACTIONIBUS. 


(xv. §§ 171-187. 


of bona fides, and from instituting 
the Contrary action. 


§ 182. In some actions condem- 
nation carries infamy, as in the 
actions of theft, rapine, outrage, 
partnership, trust, guardianship, 
agency, deposit. In prosecutions 
for theft it is not only infamous to 
be condemned, but also to com- 
promise, as the edict justly ordains ; 
for obligation based on delict differs 
widely from an obligation based on 
contract. But although there is no 
express definition of infamy in any 
part of the edict, a person is said 
to.be infamous who is prohibited 
from appearing in a court of law 
on behalf of another, from appoint- 
ing & cognitor or procurator, and 
from himself serving as cognitor or 
procurator. 


$ 183. Finally, it is te be noticed 
that a party intending to sue must 
Serve a summons on his opponent 
to appear; and if the summons is 
disregarded, the party summoned 
forfeits a penal sum according to 
the provisions of the praetor's edict. 
Some persons, however, cannot be 
summoned without the praetor's 
leave, such as parents, patrons, 
patronesses, and the children of a 
pstron or patroness; any one in- 
fringing this rule is liable to & 
penalty. 

$184. Upon an appearance in 
court, if the proceedings are not 
terminated on the same day, the de- 
fendant must give security for an ad- 
journed appearance on a future day. 

$ 185. The security is sometimes 
with sureties, sometimes without 
sureties, sometimes on oath, some- 
times contains a reference to re- 
cuperators, so that on default of 
appearance the defendant may be 
immediately condemned by the re- 
cuperators in the penal sum of the 








1v.$$171-187.] DE POENA TEMERE LITIGANTIUM. 


singula diligenter praetoris edicto 
significantur, 

$186. Et siquidem iudicati de- 
pensiue agetur, tanti fiet uadi- 
monium, quanti ea res erit; si 
uero ex ceteris causis, quanti actor 
lurauerit non calumniae causa pos- 
tulare sibi wadimonium promitti. 
nec tamen (píuris quam partis 
dimidiae, nec) pluribus quam ses- 
tertium ¢ M fit uadimonium. ita- 
que si centum milium res erit, nec 
iudicati depensiue agetur, non plus 
quam sestertium quinquaginta mi- 
lium fit uadimonium. 


§ 187. Quas autem personas sine 
permissu praetoris inpune in ius 
uocare non possumus, easdem nec 
uadimonio inuitas obligare possu- 
mus, praeterquam si praetor aditus 
permittat. 


629 


security; all which is expressed at 
length in the edict. 

$ 186. In an action on a judgment 
debt, or for money paid by a sponsor, 
the sum of the security is equal to 
the sum in dispute. In other cases 
it is the amount which the plaintiff 
swears that he honestly believes to 
be necessary to his security, provided 
that it is not more than half the 
sum in dispute, nor exceeds a hun- 
dred thousand sesterces. If, for 
instance, the sum in dispute is a 
hundred thousand sesterces, and the 
action is not brought to recover a 
judgment debt or money paid by a 
sponsor, the penal sum of the security 
conditioned for reappearance may 
not exceed fifty thousand sesterces. 

$ 187. Those persons who cannot 
be summoned to appear without 
leave of the court cannot be com- 
pelled to give security for the ad- 
journed appearance without similar 


permission, 


§ 171. From the duplication of damages against a defendant 


who denied his delinquency under the lex Aquilia, 3 § 216, and 
against a heres charged with a legacy in the form of condemnation, 
§ 9; and from the terms, dare damnas esto = dare judicatus esto, 
employed both in the lex Aquilia, 8 § 210 comm., and in bequest by 
the form of condemnation, 2 § 201, it may be inferred with much 
probability that both the author of unlawful damage and the heir 
charged with a legacy by words of condemnation were subject, in 
the older period of the law, to the same proceedings as the judg- 
ment debtor (judicatus); that is, in early times were suable by 
Manus injectio, § 25, and in later times were bound to give 
satisdatio judicatum solvi, $ 102. 

Double damages, as a penalty of misrepresentation, were also 
an incident of Nexum. Cum ex 12 Tabulis satis esset ea praestari 
quae essent lingua nuncupata, quae qui infitiatus esset dupli poe- 
nam subiret, a jureconsultis etiam reticentiae poena est constituta, 
Cic. De Off. 8, 65. * While the Twelve Tables were satisfied with 
requiring compensation for faults against which a mancipator 
had expressly warranted, and with punishing a false warranty by 


630 DE ACTIONIBUS. [xv. $$ 171—187. 


double damages, the jurists imposed a similar penalty on re- 
ticence.’ 

Constitutum was a pact (not a stipulation) promising to pay 
& pre-existing debt on a certain day. If the pre-existing obli- 
gation was a natural obligation of the promisor, the constitutum 
converted a natural into a civil obligation; if it was the obligation 
of another person, it operated as a guaranty. 

As an extremely easy means of transforming naturalis obligatio 
into civilis obligatio, that is, of arming a creditor with the sharp 
remedies of the civil law, the invention of the Consensual contract 
of Constitutum sufficiently explains, as already suggested, the 
desuetude of the Literal contract of Expensilatio, a process which 
the ancient Romans employed for the same purpose. It has the 
advantage over Stipulatio of being practicable inter absentes, and 
of leaving the prior obligation in force. Actio Constitutoria had 
a Condemnatio incerta; Si paret Numerium Negidium sestertium 
decem millia Aulo Agerio soluturum se constituisse, eamque pecu- 
niam cum constituebatur debitam fuisse ; Quanti ea res erit, tantam 
pecuniam judex Numerium Negidium Aulo Agerio condemnato : 
si non paret, absolvito.. 

In Condictio and Constitutum the sponsio was optional (permit- 
titur): in Interdicts it was compulsory, § 141. Bethmann-Holl- 
weg, $ 96. 

§ 175. A charge of calumny implies guilty knowledge or un- 
lawful intention (dolus), the Contrary action implies unlawful 
ignorance, that is, recklessness or want of consideration (culpa, 
temeritas). 

$ 176. In three personal actions each party was considered as 
both plaintiff and defendant and had to take both the oath of the 
plaintiff and the oath of the defendant. Qui familiae erciscundae 
et communi dividundo et finium regundorum agunt, et actores sunt 
et rei, et ideo jurare debent non calumniae causa litem intendere, 
et non calumniae causa infitias ire, Dig. 10, 2, 4. ‘In partition of 
inheritance, dissolution of joint ownership, and tracing of bound- 
aries, both parties are equally plaintiff and defendant, and therefore 
must swear to the good faith of both the suit and the defence.’ 

In the time of Justinian the action of calumny, the Contrary 
action, sponsio and restipulation had become obsolete, and in 
their place the losing party was condemned in costs, and the oath 
received development, being always administered to both parties 


rv. § 171-187. ] LIBELLARY PROCEDURE. 631 


and their advocates, Inst. 4, 16, 1. ‘Instead of the old checks 
the oath of the parties and their counsel has been introduced, and 
the condemnation of the unsuccessful litigant in the costs of his 
adversary,’ Cod. 8, 1, 14. ‘The counsel at the commencement of 
the hearing, after the exposition of the bill and answer, shall touch 
the holy Gospels and swear to do their utmost for their clients as 
far as they believe their cause to be just, but not knowingly to 
support the wrong, and if in the course of the proceedings they 
should change their opinion, to retire from the cause. Payment 
of coste by the loser of the cause was introduced by a law of Zeno, 
A.D. 486. 

§ 184. Vadimonium, cautio judicio sisti, must be distinguished 
from the security judicatum solvi. It only referred to appearances 
in jure, and was required whenever there was an adjournment, 
whereas security judicatum solvi was only required from the de- 
fendant in real actions and in certain exceptional personal actions, 
§ 102. 

In procedure by cognitio extraordinaria, the in jus vocatio, 
summons of the defendant by the plaintiff, was superseded by 
the evocatio, summons of the defendant by the magistrate through 
his lictor. Obedience to this summons was compelled by a fine 
of which we have the formula in Gellius, 11,1. * As M. Terentius 
on citation has neither answered nor been excused, I fine him in a 
Bingle sheep. If the defendant continued contumacious he was 
summoned to appear by three proclamations (edicta) at intervals of 
ten days, and finally an edietum peremptorium was issued in which 
the magistrate threatened to hear and decide the case in his ab- 
sence, in default of his appearance, which was done, if he continued 
disobedient, Dig. 5, 1, 68, &c. 

Procedure before a judex was properly called actio, before the 
praetor, persecutio, Dig. 50, 16, 178, 2. ‘ Persecutio is the proper 
name for proceedings before the praetor, as in trusts and other 
claims which are not triable by an ordinary judex.' 

The Libellary procedure which existed in the time of Justinian, 
having superseded the Formulary procedure, was essentially the 
same as cognitio extraordinaria. Instead of the summons before 
the praetor (in jus vocatio) and notice of the action which the 
plaintiff meant to bring (editio actionis) with which the Formulary 
procedure commenced, Libellary procedure began with libellus 
conventionis and commonitio. The libellus conventionis was a 


632 DE ACTIONIBUS. [1v. $$ 171-187. 


writing addressed to the court, signed by the plaintiff, stating his 
cause of action, and binding himself to proceed to Litis Contestatio 
within two months at latest, or pay twice the costs up to thirty-six 
aurei, to prosecute the suit to judgment, and pay the coste in the 
event of losing the cause: it was a form of suing out a writ or 
summons. Thereupon followed an interlocutio of the court, that is, 
a commonitio, corresponding to the original writ, addressed to the 
defendant and served on him, not by the plaintiff but by an officer 
of the court (executor) along with the libellus. The defendant 
then paid a fee (sportula) to executor proportioned to the amount 
of the claim; delivered his answer or counter-declaration (libellus 
contradictionis, responsionis) signed by himself and acknowledg- 
ing the date of the reception of the libellus; and either gave 
cautio judicio sisti, security for his appearance in jure for the de- 
finitive appointment of the trial (judicio ordinando) and for his 
continuance to the close of the trial (cautio de re defendenda), or 
was liable to incarceration. 

Gaius has given us no information concerning Appeal. Under 
the republic we hear of no right of Appeal in civil suits: it appears 
however with the empire, and indeed with the first emperor. The 
following series of Appeals in civil suits was instituted by Augus- 
tus: From the Judex to the Praetor who appointed him: from the 
Praetor to the Praefectus urbi: from the Praefectus urbi to Caesar. 
In the provinces a Vir consularis, appointed for the purpose, took 
the place of Praefectus urbi, Suetonius, Augustus, 33. 

For the constitution of the courts in the periods of Legis actio, 
Formula, Libellus, the student should consult Bethmann-Hollweg's 
Roemischer Civilprozess. 


ADDENDUM. 


FORMAL, ABSTRACT, AND SIMULATIVE DISPOSITIONS. 


Tue following observations borrowed from Ihering are supple- 
mentary to the statements on the nature of FORMAL contracts. 

The contracts which in this treatise have been designated as 
FORMAL are sometimes from a different point of view called ABsTRACT, 
and an examination of the meaning of this term may throw light 
on the function for which Formal contracts were invented by juris- 
prudence and which this term expresses. The explanation of the 
ierm turns on two conceptions: the Cause of an obligation (causa 
obligationis) and the Form of a disposition: the cause alone needs 
elucidation. 

A unilateral contract, consisting merely of a promise by one 
party and an acceptance by another, is the result of a decomposition 
of an actual transaction of commerce and life: actual transactions 
are always (to set aside for the present the case of Donation) bila- 
teral The unilateral convention conferring a benefit on A and 
imposing a burden on B is always accompanied by another uni- 
lateral disposition burdensome to A and beneficial to B. The two 
unilateral dispositions are reciprocally cause and effect: when one 
is regarded as the causal factor, the other must be regarded (if we 
may coin a term) as the sequent or dependent factor of the compo- 
site or bilateral transaction. 

Thus Mutuum, if we take one factor, is the promise to pay a sum 
which the promisor has received from the promisee : if we take the 
other factor, it 1s the alienation of property to a person who promises 
to reconvey its equivalent to the alienor. Depositum and Commo- 
datum, if we take one factor, are promises to restore Detention which 
has been received from the promisee: if we take the other factor, 
they are a delivery by a depositor or lender of Detention which 
the depositary or borrower promises to redeliver. In Pignus there 
is & similar delivery and promise to redeliver Possession. Societas 
is a promise by a partner to contribute towards the attainment of 


634 ADDENDUM. 


a common end towards which the other partner promises a like contribu- 
tion. In Mandate, there is, on the one side, a promise to perform 
something a£ the charge and expense of a principal: on the other, 
a grant of authority to deal with the property of the grantor ío 
a person who promises obedience to the instructions and devotion to 
the interests of his principal. Here the italicized words show the 
causal factors which the various unilateral dispositions require for 
their support: and similarly all other unilateral pacts might be 
shown to be dependent factors of compound bilateral transactions. 

Each correlated unilateral disposition is both cause and effect. 
Each is a lever by which the will of one of the contractors is moved. 
Each is the efficient or motor cause of the other: and (as wills 
are only moved by motives or ends) each is the final cause of the 
other. 

Although they are thus reciprocally dependent, yet generally in 
practice one habitually precedes, and thus appears to be the causal 
factor; while the one which habitually follows appears to be the 
sequent or dependent factor. This is always the case in Real con- 
tracts, where one disposition has always passed beyond the limits of 
mere convention into an alienation of property (mutuum, name- 
less contracts: do ut des, do ut facias): alienation of possession 
(pignus): alienation of detention (depositum, commodatum): or 
performance of service (nameless contracts: facio ut des, facio ut 
facias). 

The Form of & disposition is what we have elsewhere called its 
Declaration. All dispositions have two elements or aspects, one 
external or corporal, the other internal or mental. Internally they 
are the Intention of a disposer or disposers; externally they are the 
expression or manifestation of this intention. 

FoRMAL contract separates the sequent from the causal factor 
of a bilateral convention, clothes the intention in a strongly marked, 
sometimes strangely charactered, external expression, manifestation, 
or FORM, in exact conformity to the prescription of archaic law or 
primeval custom, and thus constitutes a unilateral convention valid 
by form. Form xss contract is bound by no requirement of Form 
and has no validity in isolation from its cause. FORMAL con- 
ventions from the separation or abstraction of the sequent from 
the causal factor, are appropriately called ABsTRACT; while for 
the opposite reason FORMLESS conventions may be denominated 
CONCRETE. 








ABSTRACT CONVENTION. 635 


Abstract conventions sometimes contained in their formalities a 
shadowy recognition of their departure from the concrete realities 
of life—a confession of the necessity of a supporting Cause in actual 
commerce ; but sometimes contained no such avowal. Thus Nexum 
and Expensilatio contained the phantom of a money loan, the ana- 
logon of the ‘ Value received? clause in a modern bill of exchange. 
But this recognition was not universal; for Stipulatio, whatever 
may have been its original form, (—if derived from Stips, the word 
suggests prepayment by the promisee: if connected with Stipes, it 
merely signifies a binding formula—) in the shape with which we 
are acquainted does not hint as a motive or cause of the advantage 
conferred on the promisee any compensating burden that he has 
previously borne. 

The function of ABsTRACT conventions, the purpose for which 
they were invented, is obviously the facilitation of the Proof of 
rights and duties by means of the simplification of their Title. The 
more comprehensive the conditions of the Title to which a right is 
annexed, the more complicated and troublesome will be its Proof. 
The causal factor of Formless contracts yields to a fraudulent debtor 
at least as many positions where he can intrench himself as the 
sequent factor. The necessity imposed on the plaintiff in an action 
on a Formless contract of proving the existence of an adequate cause 
doubles his burden of proof: Abstract conventions reduce this 
burden to a fraction. 

From the statement, 8 $ 92 comm., that a certain evidence of the 
contract is an integral part of Formal but not of Formless contracts, 
that Formal conventions, in other words, take up into their essence 
a certain preappointed evidence, while Formless contracts are com- 
plete independently of this, it might be inferred that the elements 
of the Formal contracts were more complex than those of the Form- 
less: but this would be an erroneous conclusion. The admission of 
evidentiary matter into the essence of the Formal or Abstract con- 
vention is more than counterbalanced by the exclusion of the causal 
factor. 'The evidentiary matter is something visible and audible 
and easy of proof and adjudication ; prescribed, indeed, for the very 
reason that it is so easy of proof and adjudication: whereas the 
causal factor, involving a question of ulterior as well as of 
immediate intention, may furnish scope for endless subterfuge and 
. controversy. 

The validity of Formal contracts irrespective of the causal factor 


636 ADDENDUM. 


was to a certain extent infringed in later jurisprudence by the 
admission of the Exceptio non numeratae pecuniase. For the 
space of two years after a stipulatio the creditor who sought to 
enforce the contract was under the necessity of proving the 
existence of the causa (numeratio pecuniae): to this extent, then, 
Stipulatio was reduced to the disadvantageous position of a Form- 
less contract, 4 § 116 comm. 

Format dispositions were not confined to the sphere of contract : 
in the sphere of alienations Traditio is Formless while Mancipatio 
and In jure cessio are Formal. Formal alienations present the same 
contrast that we noticed between Formal conventions. Mancipatio 
by its simulation of a purchase and the payment of purchase money 
makes the same shadowy recognition of a causal factor that Nexum 
and Expensilatio made by the fiction of a loan; while in Jure 
cessio (if we can speak with confidence of a process about which 
we know so little) resembled Stipulatio in contammg no such 
recognition. ; 

Ihering who has handled this topic, § 55, applies the term 
ABSTRACT to Formal alienations. When, however, we compare 
Formal and Formless alienations we find the terms Abstract and 
Concrete not so applicable to alienations as they were to conven- 
tions, and for this reason: in Formless alienation there is as com- 
plete an ABSTRACTION or severance of the sequent from the causal 
factor as there is in Formal; and Tradition is as unilateral a trans- 
action as Mancipation or Judicial Surrender. 

This assertion may seem inconsistent with the doctrine (2 § 65 
comm.) that, to constitute a valid alienation, Tradition must be 
preceded by some justa causa, Donatio, Contractio, or Solutio. The 
preceding disposition, however, is not required in order to form 
the causal factor of a bilateral disposition, but in order to furnish 
evidence of the Intention required for a unilateral disposition: to 
prove the existence of animus transferendi dominii, without which 
Tradition would be a Form without a substance, would want the 
internal element it requires in order to amount to a Disposition. 
Once let the sequent factor, the intention requisite for a unilateral 
disposition, be proved, and the justa causa, the donandi, credendi, 
solvendi animus is immaterial. Thus a misunderstanding between 
alienor and alienee respecting the nature of the transaction, the 


one intending a loan the other a donation, or the one intending. 


the discharge of a debt imposed by testament the other the dis- 








FORMAL ALIENATION. 637 


charge of a debt imposed by stipulation, is immaterial: because 
the intention of donation and of loan, of paying a legacy and of 
paying a stipulated debt, alike involve the animus transferendi 
dominii. Quum in causis dissentiamus, non animadverto cur in- 
efficax sit traditio: veluti si ego credam me ex testamento tibi 
obligatum esse ut fundum tradam; tu existimes ex stipulatu tibi 
eum deberi Nam et si pecuniam numeratam tibi tradam donandi 
gratia, tu eam quasi creditam accipias, constat proprietatem ad 
te transire, nec impedimento esse quod circa causam dandi atque 
accipiendi dissensimus, Julian, Dig. 41, 1, 36. An error in respect 
of the causa may be sufficient to entitle an alienor to condictio 
indebiti or condictio sine causa; i.e. to a suit for reconveyance for 
want of consideration: but it does not prevent the transmuta- 
tion of ownership in the first instance: and if the property 
passes onward to a third person the alienor cannot reach it in 
his hands, but has only a personal action against the original 
alienee. 

In one particular instance, by special statutory enactment, the 
causa traditionis is material to the efficacy of Tradition. "Tradition 
solvendi animo, when the solutio intended is the performance of 
a contract of sale, operates no transmutation of property except in 
sales expressly on credit until the purchase money is paid or security 
is given for its payment. This, as we have seen, 2 § 65 comm., was 
& provision of the Twelve Tables Mancipation and Judicial sur- 
render were not thus restricted in their operation, but transferred 
ownership irrespectively of the payment of purchase money. In 
Mancipation the requirement of the Twelve Tables was deemed 
to be satisfied by the simulation or payment (isque mihi emptus 
est hoc aere aeneaque libra); and possibly, as Ihering sug- 
gests, the requirement of the Twelve Tables was the very reason 
why the simulation of payment was introduced into this solemnity. 

In this single point, then, Mancipation and Judicial Surrender 
were more completely isolated from their causa than Tradition: 
but with this exception Formal and Formless alienations were 
equally ABsTRACT. Both operated transfer of dominion in spite of 
any flaw in the causa. If such a flaw existed in either a Formal 
or a Formless alienation, it only gave the alienor a personal action 
(condictio) against the alienee for reconveyance. He could not re- 
cover the property if it had passed out of the hands of the first 
 alienee into those of a second. 


638 ADDENDUM. 


If we inquire why Formless alienation was allowed to have 
validity irrespectively of the causal factor, we shall find the reason 
to be, that Tradition or parting with possession, though a Formless 
proceeding, is an act of so serious a character as effectually to 
preclude all idea of indecision—to prove that the parties had 
reached the stage of definitive resolution. Accordingly the inten- 
tion of transferring ownership when manifested by Tradition seems 
to deserve all the efficacy that could be imparted by the observance 
of the most solemn Forms. 

As in the later jurisprudence Stipulatio was robbed of part of 
its efficacy by the Exceptio pecuniae non numeratae, so in the later 
period of Roman law Alienations whether Formal or Formless were 
deprived of part of the trenchancy of their operation by the actio 
quod metus causa and Restitutio minorum, impersonal remedies 
(in rem) which reached the property to whatever hands it might 
have arrived by the effect of subsequent alienations. 

If, then, Formal alienations were not simplifications of title in 
virtue of any greater ABSTRACTNESS than was possessed by Form- 
less alienation, for what other advantage were they introduced into 
commerce ? by what other attribute were they a facilitation of Proof ? 
They facilitated proof (1) of the specific intention of a disposer 
against an allegation of a different intention, and (2) of the exist- 
ence of intention against the denial of all intention. 

(1) Tradition might be made with the design of merely trans- 
ferring Detention. Such was its effect in Depositum, Commodatum, 
Mandatum, Locatio. Or, secondly, it might be made with the 
purpose of transferring something more than Detention, namely 
Possession. Such was its effect in Pignus and Precarium. Or, 
thirdly, it might be made with the intent of transferring Property, 
as in Donatio, Mutuum, Solutio. Which of these intentions 
prompted a given Traditio might be extremely diffieult to prove. 
The difficulty vanishes in Mancipation and Judicial Surrender. 
Their forms comprehend a most emphatic and trenchant expression 
of intention. ‘Iam invested with dominion’ (hune ego hominem 
meum esse aio) is the exclamation of the alienee, confirmed by the 
assent of the alienor, in both modes of Formal alienation. 

(2) Formless dispositions whether alienations or conventions may 
leave a doubt not only which of several intentions governed a pro- 
cedure but whether any intention at all had been matured in the 
minds of the negotiators. Had the parties passed the stage of mere 











FORMAL ALIENATION. 639 


contemplation, inclination, preliminary discussion, were they still 
vacillating, now yielding to an attractive prospect, now receding 
from half-made concessions? Or had cupidity and timidity, desire 
and hesitation, given place to final decision and deliberate resolve ? 
It is obvious that the formalities o£ the solemn modes of contract 
were invented for the purpose of excluding all doubt from the 
answers to these questions. 

Beginning these remarks we adjourned the consideration of Dona- 
tion, which may now be noticed. Unilateral dispositions, we have 
seen, do not exist in the actual world unaccompanied. Each im- 
plies another on which it leans. Intention to incur a loss has its 
final and efficient cause in intention to procure a gain. If this was 
universally true we might say that all dispositions were bilateral: 
i. e. that in all a pecuniary loss incurred at one stage of the trans- 
action is balanced by a pecuniary gain accomplished at another. 
This holds of all mercantile transactions which are the bulk of those 
that occupy the attention of jurisprudence. The market, however, 
is not the whole of the world, nor are mercenary acts the whole of 
life; and there is such a thing as a disinterested disposition, a 
disposition wherein à man incurs a loss to which the causa or 
motor factor is the intention not of counterbalancing gain in 
another part of the transaction, but of pure and simple and un- 
requited liberality. 

Donation may be found in the sphere either of Dominion or of 
Obligation ; it may be accomplished either by alienation or by 
promise: the intention of liberahty may be consummated either by 
Tradition or by Stipulation. Donation, that is to say, is one of the 
eausae obligationis as well as a justa eausa traditionis: and it was 
in contemplation of a contract animated by such a cause that we 
abstained when beginning this note from saying unreservedly that 
all actual conventions were bilateral. 

I will seize the present opportunity of supplying an omission in 
the commentary and noticing another feature common to many 
Formal dispositions. 

The FORMAL dispositions of Roman jurisprudence were frequently 
SIMULATIVE. When a new juristic purpose was to be accomplished, 
the method of jurisprudence was, instead of creating for it by an 
effort of imagination a new corporeal form, to lay hold of some 
existing disposition, and wrenching it more or less completely from 
ite original basis and original uses, to employ ite more or less 


640 ADDENDUM. 


twisted and distorted form as a vehicle or incorporation of the new 
intention. The new intention is the reality: the original intention 
is divorced from the form once its own, and now is merely simu- 
LATED. "Thus the festuca wielded in Sacramentum represente the 
weapon intended to be used in a duel, the older mode of ascertain- 
ing rights. Judicial surrender (in jure cessio) is intended to effect 
a transmutation of ownership from person to person: in form it is 
a judgment respecting an already existent ownership. Nexum 
and Expensilatio were intended to operate novations, to transform 
equitable into legal obligation: in form they both were loans of 
money. Mancipation a solemn form of conveying dominion 
simulated a sale and the accompaniment of primeval sales, the 
weighing of the uncoined masses of bronze that served as purchase 
money. The form then, instead of bemg the natural execution 
and expression of an intention, has but a remote correspondence 
to the end which it embodies, and sometimes may be called 
SYMBOLIC: e.g. the production of the scales and bars of bronze 
and pantomime of weighing ih Mancipation was the natural 
mode of executing an archaic sale, but is merely a SYMBOLIC or 
hieroglyphic expression of the transmutation of dominion. Some- 
times a mimetic disposition became itself the object of subse- 
quent mimicry. Thus while Mancipation was a fictitious sale 
(imaginaria venditio, 1 § 113), Testament was a fictitious Man- 
cipation (imaginaria mancipatio, Ulpian 20, 2), i.e. the simulation 
of a simulation. 

The Simulative character was not a universal feature even of 
the older Formal dispositions: for instance, Stipulation seems to 
have had nothing mimetic in ita form: while later jurisprudence, 
when it had to invent a form, never adopted the symbolic style. 
Rigorous forms were prescribed as a condition of the validity 
of various dispositions: e.g. the presence of a certain number of 
witnesses for the execution of a Will: declaration before a notary 
for a guaranty by a woman: memorandum in the official records 
of a magistrate (actis, gestis insinuare) for donations of more than 
500 solidi: none of which were simulations of any more primitive 
procedure. 

The degree of integrity or mutilation in which the primeval 
disposition persisted in the modern institution varied in different 
instances. Sometimes the old proceeding imposed all its rules on 
the new institution: more commonly many of ite aspects were 








SIMULATIVE DISPOSITIONS. 641 


effaced and only isolated incidents continued in force. The pro- 
cedure which involved Coemptio, 1 § 118, was applied by the 
ingenuity of later jurists to accomplish three purposes never 
dreamed of by those who presided over its introduction: the 
extinction of the sacred rites by which the estate of an heiress 
was burdened ; the change of guardian by a woman at the period 
when all women were under wardship; and the acquisition of 
testamentary capacity by a woman at a time when widowhood 
was the only title by which it could be acquired. It was a 
complicated process and consisted of three factors, each of which 
was an archaic institution: (1) a Hand-marriage (in manum 
conventio) accompanied with a fiducia for remancipation; (2) a 
remancipation accompanied with a fiducia for manumission; (3) 
@ manumission and consequent wardship. Of these factors the 
Hand-marriage was a pure unreality: it was divested of reality 
by the accompanying fiducia; yet one of its incidents continued 
in force, the transfer of the obligation to the sacred rites from 
the heiress to the coemptionator. The second act was so far an 
unreality that it was no longer the sale of a wife by her savage 
lord in exchange for some more coveted commodity: but it was 
real so far as it subjected the remancipated woman to capitis 
minutio. The manumission was unreal so far as it implied a 
vindication into freedom or a liberalis causa and an escape from 
the hardships of bondage: but it was real so far as it had the 
effect of making the manumitted ex-bondwoman the ward of her 
manumitter. 

Emancipation, 1 § 132, was a process which consisted of four 
mancipations and three manumissions. The first three mancipa- 
tions were each accompanied by a fiducia, p. 94, of the alienee: 
the first two by a fiducia binding the alienee to manumit the son, 
the third by ‘a fiducia binding the alienee to remancipate the son 
to the father. By the final manumission the parens manumissor 
became the patron, p. 822, of his son. Here we have another 
ceremony which employed a primitive disposition divested of its 
natural motive. The independence of the son whose father had 
three times sold or leased his patria potestas over him to a 
stranger was originally enacted by the Twelve Tables as a 
punishment for an odious and unnatural exercise of parental 
rights. In later times the mancipation of the son for the sake 
of its legal consequences was an act of self-abnegation on the part 

Tt 


642 ADDENDUM. 


of the father; a means of promoting the son to an independent 
position, the status of head of a household. 

The positive and arbitrary character of sIMULATIVE dispositions 
displays itself in the fact that the laws of the original dispositions 
which they welded into their substance were neither consistently 
regarded nor consistently disregarded. (A) Sometimes they were 
regarded in spite of the inconvenience they occasioned: (B) 
sometimes convenience prevailed: the new institute acquired an 
independent position; and logic and archaeology were set at de- 
fiance. 

(A) The form of Judicial surrender could not be employed for the 
acquisition of property by the agency of an inferior (son or slave) 
because such a person could not be a plaintiff in a genuine vindi- 
eatio. Hence the inferior could be an instrument for acquirmg 
a rustic servitude, because he could be a party to a mancipation, 
but not for acquiring an urban servitude, because this could only 
be conveyed by Judicial surrender, 2 § 29. 

In Mancipatio the payment by bars of bronze was as fictitious 
as the apprehensio or taking possession; and yet it sufficed to 
satisfy the requirement of the Twelve Tables whereby in Sale and 
delivery the passing of property was suspended until payment of 
the purchase money. 

Manumission of the son by the emancipating father from the 
shadowy state of mancipium invested the latter, if he survived his 
son, with the serious pecuniary rights of patronus against his testate 
or intestate succession. 

Women were incapable of Adrogation because this solemnity 
involved a fictitious assembly of the Comitia Curiata; and in such 
an assembly women were not allowed to be present. 

In the mancipatory will the Familiae emptor was originally the 
appointed successor; and therefore, to exclude interested testimony 
(domesticum testimonium) persons united to Familiae emptor by 
the bond of patria potestas were disqualified for the róle of witness. 
The disqualification was continued, in spite of the inconvenience 
it would occasion, when the familiae emptor was a mere fiction ; 
and, what is more extraordinary, legatees and persons united to the 
true successor were admissible as witnesses although the policy of 
the legislator was thereby entirely defeated (totum jus tale contur- 
batum fuerat, Inst. 2, 10, 10). The requirement of testamenti 
factio passiva at the time of the making of a will, as well as at the 





SIMULATIVE DISPOSITIONS. 643 


time of the testator’s death and the time of acquisition by the 
successor, was, according to Savigny § 393, only an irrational 
consequence of the simulation of Mancipium in a will. 

(B) In the following instances on the contrary the laws of the 
simulated institution were disregarded. Hereditatis petitio being 
a form of Vindicatio we might have expected that any kind of 
inheritance when once vested would be transferable by Judicial 
surrender or fictitious vindication, just as any form of inheritance 
could be litigated by genuine hereditatis petitio. But we find that 
only the intestate succession of a collateral (legitima hereditas) 
could be thus conveyed, and this only before it had vested by aditio 
in the alienor, 3 § 85. 

In Mancipatio, although the fictitious payment sufficed for the 
transfer of dominion, yet it did not suffice for the purpose of making 
the alienor subject to auctoritas, liability to repay twice the pur- 
chase money in the event of eviction, Paulus, 2, 17, 1. 

Again, the Census, like a year of jubilee, appears to have 
liberated from genuine bondage; but not to have broken the 
fictitious bondage of a son who was in the course of emancipation, 
1 § 140. 

Coemption transferred to the husband the universal estate of the 
wife, 2 § 98. We may infer e contrario that it had not a similar 
effect on the property of a woman who merely made a coemption 
for the purpose of changing her guardian or acquiring testamentary 
capacity. 

The genuine sale of a wife was forbidden at an early period under 
the severest sanctions: this did not prevent the simulated sale (re- 
mancipatio) of a woman by her coemptionator: i.e. the simulating 
disposition when once established was free from the supervening 
rules of the simulated disposition. 

A Testament affected to be a Mancipation: but juris univer- 
sitas, the subject of testament, is not found in the catalogue of 
mancipable things (res mancipi): a testament was revocable, a 
mancipation irrevocable: a mancipation could not have its opera- 
tion suspended or made contingent on a condition (p. 384), a 
testament was a disposition de futuro and might be conditional : 
a mancipation only conveyed dominion; nexum, which imposed 
obligation, though cognate, was a distinct institution: testament 
both invested the successor with dominion and subjected him to 
obligations: mancipation only affected the alienor and alienee, 

Ti2 





testament conferred nights on legatees, i.e. strangers who had in no 
way co-operated in the execution of the testament. The sacrifice 
of reality to fiction by the slavish adherence to the rules of do- 
mesticum testimonium makes it the more remarkable that the 
testament should have burst asunder so many other restrictions of 
mancipation. Ihering, Geist des Roemischen Rechts, § 58. 











APPENDIX. 


SOME conjectural readings, principally by Krueger, too uncer- 
tain for admission into the text, but followed more or less closely 
in the translation, are here appended. 

1§118. nam feminae a coemptionatoribus codem modo possunt 
mancipari quo liberi a parente mancipantur; adeo quidem, ut 
quamvis ea sola apud coemplionatorem filiae loco sit, quae ei nupfa 
sit, tamen nihilo minus, &c. 

16132. At the end, cf. Epit. 1,6,8. *'Tamen cum tertio manci- 
patus fuerit filius a patre naturali fiduciario patri, hoc agere debet 
naturalis pater, ut ei a fiduciario patre remancipetur et a naturali 
patre manumittatur, ut & filius ille mortuus fuerit, ei in hereditate 
naturalis pater, non fiduciarius, succedat." 

1 $ 182 a. ‘Ei, qui liberum caput e causa mancipii manumittit, 
eadem jura in ejus bonis competere, quae patrono in bonis liberti com- 
petunt ;’ for the remainder of the § cf. Epit. 1, 6 § 3 ‘ Feminae vel 
nepotes masculi ex filio una emancipatione de patris vel avi exeunt 
potestate et sui juris efficiuntur. Et hi ipsi quamlibet una manci- 
patione de patris vel avi potestate exeant, nisi a patre fiduciario 
remancipati fuerint et a naturali patre manumissi, succedere eis 
naturalis pater non potest, nisi fiduciarius, a quo manumissi sunt ; 
nam si remancipatum eum sibi naturalis pater vel avus manumiserit, 
ipse ei in hereditate succedit.’ 

] $ 184. * Praeterea parentes, liberis in adoptionem datis, in potes- 
tate eos habere desinunt: et in filio quidem, si in adoptionem datur, 
tres mancipationes e£ duae,’ &c. 

1 § 186. ‘Praeterea mulieres quae in manum conveniunt, in 
patris potestate esse desinunt, sed in confarreatis nuptiis de flaminica 
Diali senatusconsulto ex relatione Mazimi,’ &c. And six lines fur- 
ther; ‘Coemptione autem facta mulieres omnimodo potestate parentis 
liberantur. 


646 APPENDIX. 


2§ 14. after rusticorum; cf. Epit. 2, 1, 3. * Praediorum urba- 
norum jura sunt velut jus a//iues tollendi aedes, et officiendi /uminibus 
vieini aedium, aut «ow extollendi, ne luminibus vicini officiatur, ilem 
fluminum et stilicidiorum jus, id est ut vicinus flumen vel stillicidium 
in aream vel in aedes suas recipiat; item cloacae immittendae et 
luminum immittendorum.  Praediorum rusticorum jura sunt velut 
via, iter, actus, item pecoris ad aquam adpulsus, item jus aquae 
ducendae. 

2§ 14 a. ‘Est etiam alia rerum divisio: nam aut mancipii sunt 
aut nec mancipii. Mancipii sunt velut fundus in Italico solo, item 
servi et ea animalia quae collo dorsove domari solent, velut boves 
equi muli asini; item servitutes praediorum rusticorum. Nam 
servitutes praediorum urbanorum nec mancipii sunt.’ | (C£. Dig. 1, 8, 
1,1. Inst. 2, 2, 8). 

2 6 15. ‘sed quod diximus ea animalia quae domari solent, man- 
cipii esse, quomodo intelligendum sit, quaeritur, quia non statim ut 
nata sunt, domantur. Et nostrae quidem scholae auctores síaíim 
ut nata sunt,’ &c. 

2 § 66. * efiam si occupando ideo res adquisierimus." 

2 § 82. accipientis sine tutoris auctoritate. 

2 § 129. after pronepotes ; * nominatim exheredari Jubet, feminini 
vero inter ceteros; qui nisi fuerint ita exheredati, promittit eis 
contra tabulas bonorum possessionem." 

2 6 149 a. after non sit; ‘cum si agnati petant hereditatem excep- 
tione doli mali ex coss/itutione imperatoris Antonini removeri 
possint." 

2 $150. ‘Sane /ege Julia scriptis non aufertur hereditas, si 
bonorum possessores ex edicto constituti sint; nam ita demum ea 
lege bona caduca fiunt et ad populum deferri jubentur si defuncto nemo 
heres vel bonorum possessor existat." 

2 6$ 151 a. after hereditatem ; ‘per exceptionem doli mali repel- 
letur, si vero nemo ab intestato bonorum possessionem petierit, 
fiscus scripti heredi quasi indigno auferet hereditatem, ne ullo 
modo ad eum quem testator heredem habere noluit, perveniat here- 
ditas,’ 

2 6 287. ‘ideoque etsi secundum mentem testatoris is qui tutor 
datur, poenae nomine, &c. 

8 6 48. ‘ztaque sive auctor ad testamentum faciendum factus erat, 
aut sibi imputare debebat, quod heres ab ea relictus non erat, aut 
ipsum ex testamento, si heres factus erat, sequebatur hereditas . . . 





APPEN DIX. 647 


nec enim ullus olim ab intestato heres vel bonorum possessor erat, 
qui posset patronum a bonis libertae invitum repellere. 

8 644. eique ex bonis ejus quae centum milia sestertiorum plurisve 
reliquerit patrimonium, si testamentum fecerit, dimidia pars de- 
beatur, si vero intestata liberta decessit tota hereditas ad palronum 
pertinet. 

8 § 46. * Ohm quidem eo jure (utebantur), quod lege x11 tabularum 
patrono datum est, praetor autem non nisi virilis sexus patronorum 
liberos vocat; filia vero ut contra tabulas testament,’ &c. 

8 $69. ‘patronus heredes instituerit, ex isdem partibus bona 
Latini, si patri heredes existant, ad eos pertinere, &c., &c. 

8 § 80. *velu/i si peregrinus sit bonorum emptor.’ 

9 $81. ' Jtem quae debita sunt ei cujus fuerunt bona, aut ipse, &c. 

. * debentur, et ideo de omnibus rebus utilibus actionibus et expe- 
riuntur et conveniuntur, quas zz sequenti, &e. 

8 § 95. ‘Si quis interroganti Dari Spondes ? respondeat Promitto 
vel Dabo, an recte obligetur; aut si quis interroganti Promittis ? 
respondeat 'OuoAoyó an recte obligetur.' 

8 § 108 a. ‘ Alia causa est, si ita stipulatus sim mihi aut Titio 
Dari Spondes ? quo casu constat mihi solidum deberi et me solum ex 
ea stipulatione agere posse, quamquam eciam Tio solvendo liberaris.’ 
In the translation for a/so read alone. 

8 $117. quia enim nobis ut post mortem nostram detur stipu- 
lando. 

4 $ 1831. * Obligatio in judieium deducitur, ex ea condemnatio 
fieri non potest neque rursus de ea agi potest.’ 

4 6 1831 a. ‘tradi, vel tradita ea de evictione nobis caveri, iterum 
ex empto agere possimus, alioquin si praescribere (obliti) sumus, 
totius,’ &e. 

4 § 133. ‘per unius rei petitionem universae hereditati praejudi- 
cium fieri." 

46184. et siquidem ex contractu servorum agatur, tntentione 
formulae determinatum [Polenaar, designatum] est, cui dari opor- 
teat. 

4 $ 165. ‘nisi ei res evhibeatur aut rest.tuatur, quanti ea res erit, 
adversarius ei condemnetur.' 

4 $ 166. ‘et qui superaverit fructus licitando,’ 

4 6 166. de eo inter se certant, utri fructuum perceptio interim 
committenda est. Postea alter, &c. 

4 $ 170. ‘ Itaque etei alias potuerit interdicto Uti Possidetis vincere, 


648 APPENDIX. 


tamen si cetera ex interdicto facere noluerit, per interdictum secun- 
darium possessio in adversarium tranefertur.’ 

4§171. *Nune admonendi sumus, ne facile homines ad liti- 
gandum procedant, temeritatem tam agentium, quam eorum cum 
quibus agitur coerceri modo pecuniaria poema modo juris)jwramdi 
religione modo metu infamiae. 


INDEX. 


Figures in the thicker type indicate references to the text, in the lighter to the 


commentary. 
Ablative facta, 3. Aotio (continued). 
Acceptilatio. Surts. 
form of, 413. who can bring, 4838, 434. 


must be unconditional, 364. 

extinguished verbal contracts, 418. 

effect of, by women without guardian's 
authority, 413. 

partial release by, 414, 418. 


A.ccossio. 


meaning, 193. 

examples of, 185-6, 193. 

remedy for lose of ownership by, 186, 
193. 


adjectitia, 526. 
aestimatoria, 394. 
arbitraria: see formula arbitraria. 
annua, 551, 552, 558. 
Calvisiana, 322. 
communt dividundo, relation of, to 
vindicatio, 609. 
confessoria, 460-62. 
pd of, to English real actions, 


Actio. 


effect of defendant in, not giving 
security, 536. 
constitutoria, 630. 
de peculio deque in rem verso, 524, 
525, 527. 
de vi bonorum raptorum. 
when introduced, 439, 440. 
formula, 439. 
directa, under lex Aquilia, 444, 447. 
ex fide bond, 520. 
compared with actio stricti juris, 
474-77: 
as to plus petitio, 514. 
as to exceptio in formula of, 583. 
exercitoria, 523, 525, 527. 
who may sue or be sued by, 524. 
Fabiana, 322. 
Jamiliae hercisoundae. 
relation of, to hereditatis petitio, 
609. 
fiectitia. 
mode of operation of, 490: see also 
actio utilis. 
instances of, 485-7. 


manifesti, formula in, 435. 
nec manifesti, formula in, 439. 
honoraria. 
emanated from imperium of prae- 
tor, 543. 
hypothecaria, 350. 
in fact«m. 
mode of operation, 490. 
filius familias could bring, 505. 
capable of plus petitio, 505. 
not extinctive bar to subsequent 
action, 541, 545: 
see also actio utilis. 
in factum praescriptis verbis, 3. 
why so called, 352, 495. 
nature of, 352-3. 
in personam, 455, 458—60. 
not identical with English per- 
sonal action, 459. 
when extinctive bar to subsequent 
actions, 641, 545. 
inatitoria, 524, 525, 527. 
who may be sued by, 624. 
in rem, 455, 458—60. 
not identical with English real 
action, 459. 
how commenced, 534, 538. 
not extinctive bar to subsequent 
action, 541, 545. 
tn jus. 
a8 to plus petitio, 505 : 
see formula in jus concepta, 
judicati, 466. 
formula of, when judicium legiti- 
mum, 481. 
superseded by pignoris capio, 481. 
negativa, negatoria, 460-2. 
analogous to English real action, 


46a 
effect of defendant in, not giving 
security, 536. 
nozalis, 528. 
surrender of filius familias in, 
529. 
surrender of dead person in, 530. 





650 


Actio (continued). 


compared with actio damni in- 
fecti, 530. 
compared with English law, 530. 
changes in law as to, 530. 
perpetua, 661, 552, 558. 
pigueraticta, 350. 
popularis, 533. 
prohibiti furti, 429. 
publiciana, 177. 
who may sue by, 492. 
in actio fictitia, 4886. 
contraria, rescissoria, discussed, 
3- 
quasi tnstitoria, 409. 
quasi Servia a, 350. 
quod jussu, 528, 527. 
quod metus causa. 
nature of, and formula, 581-2. 
when introduced, 440. 
redhibitoria, 394. 
Rutiliana. 
variance between intentio and 
condemnatio of, 486, 492. 
Serviana. 
actio fictitia, 486. 
atricti juris. 
probably older than actio ex fide 
bona, 473. 
compared with actio ex fide bona, 
474-11. 
temporalis, 551, 552, 558. 
tributoria, 524, 526, 527. 
utilis. 
mode of operation, fictitia and in 
factum, 490. 
under lex Aquilia, 444, 447. 
varieties of, 448. 
vectigalis, 396. 


Actions. 


old forms of: see Legis Actiones. 
forum of: see Forum. 
natural classification of, 426. 
ex contractu, nature of, 427. 
ex delicto, nature of, 427. 
may be for restoration, or a penalty, 
or both, 458, 464. 
when right to bring, extinguished by 
death, 466. 
by prescription, 466, 544; fully 
discussed, 552 et seq. 
by merger, 466. 
by whom a person may bring or de- 
fend, 531, 532-3. 
limit of time as to pendency of, 544. 
within which, must be commenced, 
551, 551 et seq. 
when barred by previous litigation, 
541, 545, 546, 550. 
transmission of, 551, 559-60. 
what, oould be satisfied between 
formula and judgment, 560, 
561. 


INDEX. 


Actions (continued). 
discussion of pleadings, &c. in, 569 
et seq. 
and see Actio, judicium. 
Adpromissor, 381. 
Adrogatio: see Adoptio. 
Aditio, hereditatis. 
meaning, 244, 338. 
effect of, 237. 
cannot be conditional, 364. 
Adjudioatio. 
a title of civil law, 182. 
a part of formula, 493. 
example of, 494. 
never alone in formula, 495. 
only found in three kinds of action, 
406. 
Adopted children. 
rights of while in potestate of adoptive 
father, 220. 
rights of when emancipated by adop- 
tive father, 220. 
how affected by changes of Justinian, 
229. 


entitled to bonorum poesessio intes- 

tati, 301. 
Adoptio. 

& mode of acquiring patria potestas, 
83, 85. 87. 

two kinds, 83. 

populi auctoritate, i. e. adrogatio, 84. 

form of, 86. 


of impubes, 87. 

mode of universal succession, 202, 
335 ; but see, 337. 

produced capitis diminutio mini- 


ma, 336. 

effect on liability for debts, 335-6, 
487, 493. 

summary of effect of, on rights and 
obligations, 336. 

imperio magistratus, 84, 8b. 
form of, 103, 105-6. 
effect on issue of adopted person, 


104. 
change in effect of, by Justinian, 
87. 
gave adopted person civitas of 
adoptive father, 319. 
Adstipulator. 
origin of, 365, 369. 
payment to, discharges debtor, 370. 
words used by, in stipulatio, 370. 
may not stipulate for more than 
Btipulator, 370. 
heres of, cannot sue, 370. 
persons who cannot be, 370. 
is employed to secure payment after 
stipulator's death, 370. 
bound to hand over what he recovers, 
870-1. 
effect of capitis deminutio of, 370, 
380. 











INDEX. 


Adstipulator (continued), 
chief function of, 380. 
gradually died out, 381. 
Adversaria, 384. 
Aediles curules. 
jus edicendi of, 26, 31. 
Aerarium. 
meaning, 143. 
when caduca passed to, 252. 
Aestimatum, 352. 
Agency 
acquisition of dominion by, 200. 
obligationes ex contractu by, 200 ; 
more fully, 366-7, 408-9. 
in litigation of, adstipulator, 380. 
of cognitor, 409. 
germ of, hi relation of magister navis, 
526. 
Agnitio bonorum possessionis. 
meaning, 242. 
how mae, 242, 243. 


Album, 47. 

Alien: see Peregrinus. 
Ager emphyteuticus, 
carius. 

meaning of, 396. 
ager vectigalis assimilated to, 396. 
held under special kind of contract, 


emphyteuti- 


397. 
Ager publicus, 176. 
Ager privatus, 176. 
Ager vectigalis. 
meaning of, 396. 
assimilated to a er emphyteuticus, 


3 
PUE held under contract of sale 
or hiring, 395. 
Agnate: see Agnati. 
Agnati. 
definition of, 113, 296, 298. 
guardianship of, 112. 
nearest grade only entitled, 115. 
effect of capitis diminutio on rights of, 
118, 115. 
alienation of lunatic’s property by, 187. 
right of, to intestate succession, 
296-7. 
nearest grade only entitled, 296, 


298—9. 
date for determining nearest grade, 
296, 299. 
what females are entitled to succes- 
sion as agnatae, 297, 298. 
grant of bonorum possessio to, 300—1. 
can convey hereditas in intestacy by 
in jure cessio, 337, 
effect of surrender of hereditas by 
after acceptance, 337. 
Alienation. 
non-proprietors who have power of, 
187. 


651 


Alienation (continued). 

proprietors who have not power of, 
187. 

by pupillus, 195. 

by a woman, 195. 

to pupillus, 196. 

to a woman, 106. 

of an inheritance, 337, 337. 

of res litigiosa, 583. 

Alleotio, 319. 

Alluvio, 186. 

Annus utilis, 242. 

Antoninus Caracalla. 
grant of civitas Romana, 82. 
as to caduca, 252. 

Antoninus Pius. 
protection of slaves, 58, 59, 60. 
adrogation of impubes permitted, 87. 
quarta Antonini, 87. 
as to contra-tabular possession of fe- 

males passed over in will, 217. 
effect of contra-tabular possession on 
legacies to conjunctae personae, 
226. 
constitution as to passing of property 
in legacy per vindicationem, 254. 

Antorinus and Severus. 

constitution as to burden of proof in 
actio on cautio, 581. 

Appeals. 
series of, in civil suits, 632. 

Aquilian Stipulation, 417. 

Aquilius Gallus. . 
as to after-born grandchildren, 222. 
invented Aquilian Stipulation, 417. 

formula relating to dolus maius, 
417. 

Arcaria nomina. 
meaning, 388. 
create real obligations, 884. 

Argentarius. 
must recognise compensatio in for- 

mula, 520, 521. 
how compensatio is calculated against, 
521, 523. 
Aristotle. 
definition of intention, 14. 
negligence, 15. 
voluntary acts, 21. 
definition of voluntary and involun- 
tary, 22. 

Assignatio, 405. 

Augustus. 
gave jus respondendi 

jurists, 33. 
increased panels of judices, 47. 
changed legal effect of confarreatio, 


to certain 


go. 
enforced fideicommissa, 275. 
codicils acquired legal force, 288. 
lex Julia Vicesima, 374, 382. 
edict as to alienation of res litigiosa, 


583. 


652 


Austin. 
definitions, 2. 
sanctioned and sanctioning rights, 4. 
law of persons and things, 36, 37. 
meaning of title, 163. 


Bailment, 397. 

Bankrupt. 
liability of, to personal execution, 330. 
suffered loss of existimatio, 331. 
did not incur capitis deminutio, 330. 
after-acquired property of, liable, 


Bankruptoy. 
distinguished from ordinary execu- 
tion, 325-6. 
proceedings, 333-4, 327-9, 332-4. 
effect of, upon status, 330-2. 
marshalling of creditors under, 
334- 
acts of, 328-9. 
dissolves partnerships, 400. 
Baron. 
as to uti possidetis, 610, 
possession of superficiarius, 619. 
Benefice of inventory, 241. 
Beneficium. 
cedendarum actionum, 379, 383. 
competentiae, 497. 
dirisionis, 379, 382. 
excussionts, 379, 38a. 
Bentham, 3. 
Bethman- Hollweg. 
formula of actio judicati, 481. 
as to formula in action for uncertain 
sum, 587. 
praetor’s authority, 596. 
Blackstone. 
public law, 38. 
personal rights, 39. 
Bona fide possessor. 
acquires dominium through freemen 
and servi alieni, 198. 
obligationes through freemen and 
servi alieni, 411. 
acquires dominium by usucapio, 172, 
but see, 173. 
after litis contestatio, is liable for 
culpa, 425. 
Bonitary ownership, 171, 177. 
Bonitary owner. 
cannot re-manumit Latinus, 52. 
hereditas of re-manumitted Latinus 
granted to, 52. 
slave in potestate of, 59. 
property acquired by slave belongs 
to, 197. 


Bonorum cessio : see cessio bonorum. 
Bonorum distractio, 332. 
Bonorum emptor. 

who is, 8328-4, 


] 


INDEX. 


Bonorum emptor (costisued). 
acquires dominium by usucapio, 824. 
can only sue and be sued by actiones 
fictitiae, 324, 486. 
must notice any cross demand in his 
formula, 520, 521. 
Bonorum possessio. 
origin of, 215. 
nature of, 301-2, 304. 
re or sine re, 220-30, 232, 3032, 
806 


is an equitable succession, 304. 
only actiones fictitiae lay in respect of, 


304, 325. 

merely confers bonitary ownership, 
824. 

changed into dominium by usucapion, 
824. 

how claimed and within what time, 
231-2, 306. 


secundum tabulas. 
when will is invalid ab initio, 


212, 215. 
when valid will becomes invalid, 
229. 


not defeated by claim of Fiscus 
under lex Julia, 230, 232-3. 
how, and within what time, to be 
claimed, 232. 
to persons entitled under & will 
valid by jus civile, 302. 
contra tabulas. 
sometimes equivalent to intestacy, 
216. 
to female passed over, 217. 
to male not disinherited nomi- 
natim, 218. 
to emancipated children, 220. 
to patron passed over by freed- 
man, 307. 
instituted suus heres might some- 
times claim, 225. 
intestati. 
to emancipated children, 300. 
to some who were made cives with 
their father, 300. 
to agnates who had suffered capitis 
deminutio, 300, 30L 
to certain females, 300, 301. 
to cognates related through fe- 
males, 800, 301. 
io children in adoptive family, 
801. 
to persons entitled by jus civile, 
802. 
summary of classes to whom, was 
successively granted, 305. 
how claimed and within what 
time, 306. 
Bonorum sectio. 
how conducted, 332. 
vesta dominium in vendee, 333. 
transfers juris universitas, 333. 





INDEX, 653 
Bonorum venditio. Children. 
a mode of universal succession, 202. status of, when born of civil marriage, 
grounds for ordering, 323, 328-9. 66, 74, 77. 


how, was effected inter vivos, 823-4, 
327-8. 

how, was effected after death, 828-4. 

only confers bonitary dominion, 324. 

superseded by distractio bonorum, 


332. 
Breviarium Alaricianum, 48. 
Buildings. 
ownership in, 185, 192. 
servitudes in respect of: see Servi- 
tude, urban. 


Caducum, 252. 
Caligula, 47. 
Capitis deminutio. 
definition, 114. 
effect on status, 118, 113, 115. 
maxima, 114. 
minor, or media, 115. 
minima, 115; discussion respecting, 
119 et seq. 
general effect of, 116. 
some arbitrary consequences of, 122. 
of testator, effect of on the will, 228, 
231. 
effect of, on a partnership, 400, 


401. 
effect of, of & debtor on the debts, 
487, 493. 
Caracalla : see Antoninus Caracalla. 
Cassius, 134. 
Cautio. 
what, 581. 
assignment of, 406. 
judicio isti, 504, 537. 
judicatum solvi : see stipulatio judi- 
catum solvi. 
effect of giving, when money not 
paid, 581. 
Celsus, 134. 
Censor. 
edict of, 31. 
power of, under Empire, 33. 
power of, 117. 
Census. 
manumission by, 48, 45. 
evasion of, effect on status, 114. 
Centumvirale judicium. 
excepted when legis actiones abo- 
lished, 484. 
procedure in, 534. 
Ceasio actionum, 406. 
Cessio bonorum. 
origin of, 329. 
benefit conferred on debtors by, 329- 
32. 
Chirographum. 
& species of literal contract, 384. 
in time of Justinian, 387. 


of gentile marriage, 75, 77. 
when illegitimate, 76, 77. 
when status of mother changes 
before birth, 79, 80. 
Citizenship. 
Roman : see Civitas Romana. 
in municipalities, how acquired, 318. 
effect of, 319. 
& person might have, in several states, 


319. 

Civil injury, 426. 
Civis Romanus. 

ingenuus, 40. 

libertinus, 40, 48, 45, 48. 

and see Civitas Romana. 

Civitas Romana. 

Same ag jus quiritium, 54. 

how acquired by Latini, 50-52. 

conferred on whole of Italy, 49, 98, 


319. 
granted by Marcus Aurelius to all 
who would pay for it, 82. 
granted by Antoninus Caracalla to 
all free subjects of Empire, 82. 
effect of capitis deminutio and infamia 
on, 114, 115, 116 et seq. 
effect of insolvency on, 331. 
Claudius. 
building ships, &c. confers civitas 
Romana, 51. 
protection of sick slaves, 59. 
marries his niece, 67. 
abolishes agnatio guardianship of 
women, 118. 
alteration in law Terms. and Vaca- 
tions, 290. 
Sc. Largianum, 818, 317. 
Codex. 
meaning, 288. 
accepté et expenst, 384. 
Alaricianue, 48. 
Codicillus. 
origin and nature of, 285, 288. 
legacy left by, must be ratified by 
will, 285. 
heres could not be directly instituted 
or disinherited by, 285, 289. 
no formality necessary, 289. 
Coelebs. 
definition, 252. 
incapable of taking under a will, ex- 
cept that of a soldier, 208, 211, 


252. 
incapable of taking by fideicommisea, 
Coemptio. 
a mode of creating manus, 87. 
how transacted, 88, 91. 
matrimonii causa, 88-9. 
fiduciae caus, 09. 


654 


Coemptio (continued). 
form and objects, 88, 92, 93. 
operation of, as mode of universal 
succession, 335, 337. 
effect of, on debts of the person in 
manus, 325-6, 487, 493. 
Cognati -ae. 
who are, 1138, 305. 
how different degrees of, calculated, 
305. 
capitis deminutio has no effect on 
rights of, 118, but see, 113-4. 
change by Justinian as to right of, to 
succeed in intestacy, 299-300. 
related through females, grant of bo- 
noruin possessio to, 300-1, 303. 
limits of degree in which, are entitled 
to succeed, 305. 
Cognitio extraordinaria. 
meaniny, 542. 
in jus vocatio in, 631. 
libellary Procedure essentially the 
same as, 631. 
Cognitor. 
cannot be appointed conditionally, 


394. 
how appointed, 531. 
why discontinued, 533. 
not required to give security, 535. 
Co-heres. 
share of, how allotted, 251. 
effect of lapse on share of, 251. 
degree of diligence required of, 453. 
Co-legatee. 
right of, in joint or several legacy 
per vindicationem, 255. 
in joint legacy per damnationem, 
256. 
in several legacy perdamnationem, 
256, 262. 
in legacy sinendi modo, 258. 
in legacy per praeceptionem, 260. 
lapsed share of, in legacy per damna- 
tionem, 255, 256, 262. 
in legacy per damnationem, 256, 
262. 


with children, right of to caducum, 


252, 257. 
degree of diligence required of, 453. 
Collative fact, 3. 
Collocative fact, 3. 
Colonatus. 
meaning, 398. 
antitype of copyhold tenure, 399. 
Colonia, 318. 
Colonus. 
two distinct meanings, 398. 
Comitia. 
cala!a, wills made in, 45, 202. 
cenluriata, enactments of, called 
leges, 29. 
legislative power of, ceases after 
Tiberius, 29. 


INDEX, 


Comitia (continued). 

curiata, elected king, 31. 

tio sanctioned by, 85-6. 

Comity of nations, 518. 
Commercium. 

an element of civitas Romana, 176. 

a qualifeation for quiritary dominion, 

176. 

testamentifactio equivalent to, 209. 
Commixtio. 

a separable junction, 192. 

produces no change of ownership, 192. 
Commodatum. 

a real contract, 348. 

how made, 349. 

rights and liabilities of parties to, 349. 

must be gratuitous, 349. 

theft of subject-matter of, 431, 434, 


437- 
degree of diligence required in, 453. 
nudum pactum for interest could not 
be annexed to, of money, 510. 
compared with precarium, 607. 
Communio ; see Condominium. 
Compensatio. 
in what actions, applies, 520, 521. 
is in discretion of judex, 520. 
when, noticed in formula, 520, 522. 
in respect of what claims, applies, 
521. 
compared with deductio, 521. 
modes of claiming, in an action, 
522. 
Compromise, 352. 
Condemnatio. 
part of the formula, 493. 
example of, 494. 
never found alone, 405. 
how limited, 496. 
was always pecuniary, 501, 507 ; but 
see, 509. 
may be for certain or uncertain sum, 
601. 
effect of claiming too much or too 
little in, 512. 
Condictio. 
a species of personal action, 456, 463. 
a legis actio, 467-8. 
when introduced, 472, 472. 
why 80 called, 471. 
in what cases, applied, 473. 
modern, not based on ancient, 485. 
Surtica, 438. 
formula in, 463. 
lies against heres of defendant, 
559. 
certi, 463. 
incerti, 463. 
triticaria, 463. 
Condition. 
nature of a, 362. 
different effect of, in contract and 


will, 363-4- 








INDEX. 


Condition (continued). 
not annexable to 
363-4. 
suspensive, 364. 
resolutive, 364. 
Conditional sale, 352. 
Condominium. 
roduced by confusio, 192. 
bow partition of, is enforced, 410. 
Conductor, 397. 
Confarreatio. 
a mode of creating manus, 87. 
how transacted, 88, go. 
changes in legal effect of, go. 
Confiscation. 
sometimes a consequence of capitis 
deminutio maxima and media, 
116. 
dissolves partnership, 400, 401. 
Confusio. 
meaning, 192. 
produces condominium, 192. 
Connubium. 
meaning, 69. 
a condition of justae nuptiae, 61, 66, 
6 


all dispositions, 


persons who have, 69. 
Consensual contracts. 
how made, 390. 
are bilateral, 390. 
different kinds of, 
emptio et venditio, 389, 390. 
locatio et conductio, 389, 394. 
socielas, 389, 399. 
mandatum, 389, 401. 
how dissolved, 418. 
Consensus. 
meaning, 343. 
essential to a contract, 343. 
Consilium. 
to authorise manumissions, 438. 
Constantine. 
father guilty of parricide, 61. 
forbids marriage with brother's 
daughter, 70. 
introduces peculium quasi castrense, 
and adventitium, 199. 
abolishes penalties of childleasness 
and celibacy, 252. 
thirty years praescription, 552. 
Constantine, Constantius, and Con- 
stans. 
formal words not necessary to insti- 
tute heres, 214. 
formal words not necessary in giving 
legacies, 261. 
Constantius and Constans. 
Constitution of, abolished all legal 
formulae, 
as to legacies, 261. 
as to actions, 489. 
Constitutio. 
definition, 25. 


655 


Constitutio (continued), 
forms of, 25. 
explanation of forms of, 30. 
why, had force of law, 30. 
Consul. 
jus edicendi of, 31. 
power of, under Emperors, 33. 
Constitutum debiti alieni. 
an instance of golidary intercessio, 380. 
motive for introduction of, 382. 
® praetorian consensual contract, 390. 
Contract. 
definition, 342. 
essential of, 343. 
divisions of, 339, 343, 344-5. 
forma], meaning of, 343. 
what are, 343. 
. geem to rest on fiction of money 
loan, 346. 
peculiar characteristics of, 357. 
no consideration necessary but pro- 
misor may plead exceptio, 368. 
in English law, 388. 
formless, meaning of, 343. 
what are, 343. 
not valid unless promisor gets & 
quid pro quo, 368. 
in English law, 388. 
by persons in potestate, 411, 412. 
in manu, 411. 
in mancipio, 411. . 
freemen possessed boná fide, 411. 
servus alienue, 411. 
servus held in usufruct, 411. 
servus communis, 411-12, 412. 
how discharged, solutio, 413. 
novatio, 414. 
litis contestatio, 416. 
in form by which made, 418, 
damages for breach of, 446. 
literal: see literal contract. 
innominate: see innominate con- 
tract. 
real: see real contract. 
verbal : see verbal contract. 
consensual : see consensual contract. 
Conventio in manum. 
a mode of universal succession, 335. 
effect. of, on debts of the person in 
manu, 335-6. 
obsolete in time of Justinian, 337. 
Co-owners. 
bound, inter se, quasi ex contractu, 
10. 
have actio communi dividundo, 4to. 
rights of, to obligationes acquired by 
slave, 411-12, 412. 
degree of diligence required of, 453. 
Co-ownership. 
produced by confusio, 192. 
how partition of, is enforced, 410. 
Copyhold tenure. 
antitype of, in Colonatus, 399. 








656 


Corporation : see Juristio person. 
Correality. 
meaning, 375. 
how, may originate, 375. 
point of agreement between, 
solidarity, 376. 
chief differences between, and soli- 
darity, 377. 
Co-successors. 
bound, inter se, quasi ex contractu, 
410. 
have actio erciscundae, 410. 
Creditors. 
remedies of, against debtor and his 
estate, 323, 324-33. 
marshalling of, in bankruptoy, 334. 
Cretio. 
meaning, 238, 244. 
vulgaris, 389. 
continua, 239. 
imperfecta, 245. 
abolished by Justinian, 244. 
Crime, 426. 
Cul: 


and 


pa. 
opposed to dolus, 16. 
lata, 453, 454. 
levis, 454. 
levissima, 454. 
Curator. 
origin of, 137. 
appointment of, 136. 
must give security, 136. 
different from procurator, 138. 
distinct from tutor, 138. 
appointed to others than minors, 138. 
nature of obligation of, to minor, 


410 
degree of diligence required of, 453. 
Curule aedile. 
jus dicendi of, 20. 
Custom. 
a source of law, 34. 
succession by adrogatio and conventio 
in manum, governed by, 335. 


Damages. 
for breach of contract, 446. 
under lex Aquilia, 442, 443, 444. 
a means of preventing vexatious liti- 
gation, 625. 
Damnum infectum. 
action in respect of, excepted when 
legis actiones were abolished, 
484. 
proceedings in case of, under praetor's 
edict, 484, 489. 
Dare. 
meaning of, in formula, 460. 
Datio, 340. 
Decretum. 
of Emperor, 85. 
as opposed to interdictum, 587. 


INDEX. 


Dediticius. 
one off the three classes of freedinen, 


who vas &, 42. 
status of a, 42. 
has no testamentifactio, 44, 317. 
can never become a civis Ro- 
manus, 44. 
other disabilities of, 45. 
status of descendants of a, 49. 
devolution of property of a, at his 
death, 316-17. 
formally abolished by Justinian, 
321. 
Deductio. 
in action by bonorum emptor, 520. 
different from compensatio, 521. 
how claimed, 522. 
Defensor voluntarius. 
meaning, 533. 
eecurity given by, 540. 
Delatio, 338. 
Delegatio. 
& species of mandatum, 404. 
relation between the parties to, 404. 
Deliot. 
meaning, 426. 
public and private, 426. 
obligations arising out of, 888, 342. 
Demonstratio. 
a part of the formula, 403. 
never found alone, 495. 
when inserted, 495. 
effect of claiming too much or too 
little in, 513, 519. 
Denarius. 
change in value of, 538. 
Denisation, 83. 
Deportatio in Insulam. 
origin of, 81. 
effect of on status, 81, 115. 
Depositum. 
a real contract, 348. 
how entered into, 349. 
must be gratuitous, 349. 
miserabile, 349. 
trregulare, 349-50. 
theft of subject-matter of, 431, 434, 


437. 
degree. p diligence required reepect- 
Ing, 453- 
Detention. 
as opposed to possession, 615. 
nature of, 620. 
De vi bonorum raptorum actio, 439. 
Dies. 
comitiales, 289. 
continut, 243. 
fasti, 289. 
Sesti, 289. 
intercist, 289. 
judiciarié or juridict, 343, 290. 
profestt, 389. 





INDEX. 


Dies (continued). 
utiles, 243. 
Dies cedit, cedens. 
as to inheritances, 252. 
legacies, 252, 271. 
obligations, 271. 
Dies venit, veniens. 
as to legacies, 271. 
obligations, 271. 
Diocletian and Maximian. 
constitution, exchange or barter is 
a real contract, 393. 
all judicia made extraordinaria, 488. 
time, for pleading exceptio pecuniae 
non numeratae, extended, 581. 
Disposition. 
unilateral, 9. 
bilateral, 9. 
contrasted with wrongful act, 9-11. 
when affected by intention, 17. 
formal, 356, 633 et seq. 
formless, 356. 
abstract, 633 et seq. 
simulative, 633 et seq. 
Divestitive faots, 3. 
Divorce. 
how effected, 107, 108. 
effect of, on capacity to take under a 


will, 211. 
might give husband right to retain 
part of dos, 539. 


Dolus. 
definitions, 15, 16. 
opposed to culpa, 16. 
often used as synonym of Fraud, 16. 
gave rise to exceptio doli mali, 582. 
actio doli, 582. 
was a ground for restitutio in inte- 
grum, 582. 
Domicilium. 
definition, 320. 
originis, 320. 
effect of, on rights and liabilities, 320. 
forum of, 515. 
law of, when applicable, 516, 517. 
Dominium. 
place of, in the system of Gaius, 
150-1. 
of the state, its nature, 153. 
quiritary, ex jure quirttium, 171, 
175 et seq. 
who may have, 176. 
to what objects, relates, 176. 
bonitary, is bonis, 171, 177. 
of peregrinus, 171, 176. 
in provincial land, 176. 
how acquired by jus naturale, 184 et 
seq., 188 et seq. 
how acquired by jus civile, 159-60, 
161, 17Y*et aeq., 175 et seq. 
abandonment of, 191. 
differs from possessio as to abandon- 
ment, IgI. 


657 


Dominium (continued). 
persons through whom, may be ac- 
quired, 
children in potestate, 107. 
slaves, 197. 
slave in bonis, 197. 
persons in mancipio, 197. 
manu, 107. 
acquired through slaves held in usu- 
fruct, 198. 
slaves bona fide possessed, 198. 
freemen bona fide possessed, 198. 
originally not acquired by means of 
extranea persona, 199 ; but see, 


200. 
bonorum possessor acquires, by usu- 
capio, 324. 
bonorum emptor acquires, by usu- 
capio, 824. 
Donatio inter vivos, 390. 


Dos. 
alienation of, 187, 195. 
how, may be constituted, 855, 359. 
surety for, exempt from lex Cornelia, 
374. 
effect of divorce as to, 539. 
Dower: sce Dos. 
Droit d'aubaine, 292. 
Duplicatio. 
nature and object of, 566, 585. 
Duty. 
definition, 2. 
positive, 6. 
negative, 6. 


Edictum. 
of Emperor, 25, 3o. 
provinciale, 31. 
perpetuum, 31. 
repentinum, 31. 
tralatitium, 31. 
urbanum, 31. 
Biditio actionum, 504. 
Emanoipated children. 
share of daughter by contra tabular 
ion, 217. 
need not be instituted or disinherited, 
220. 
when contra tabular possession is 
granted to, 320, 225. 
rights of, when emancipated by 
adoptive father, 220. 
rights of, when their father dies in- 
testate, 300, 305. 
claims of emancipator upon property 
of, 322-3. 
Emancipatio. 
how effected, 102, 105, 106 : and see 
Emancipated children. 
Emperors. 
legislative power of, 25, 30. 
early, maintained show of republican 
institutions, 32. 


Uu 





658 


Emptio et venditio. 
& consensual contract, 889. 
how made, 390. 
differs from exchange, $01, 393. 
arra merely evidence of, 390; but 
see, 393- 
at what moment property passes by, 


391. 

compared with English law, 392, 393, 
394. 

res perit domino does not apply to, 


392. 

obligation of vendor under, 393-4. 

right of vendee to rescind, 394. 

sometimes closely akin to locatio 
conductio, 395. 

emphyteusis resembles, 396. 

who can sue “a subject-matter of, 
stolen, 438. 

degree of dilfgence required under, 


453. 
Emphyteusis. 
explained, 396. 
& contract sui generis, 397. 
right of owner of thing subject to, 
157. 
actio vectigalis lies respecting, 396. 
the germ of freehold tenure, 399. 
English law. 
chief references to, 
denization and naturalization, 83. 
statute of uses, 190. 
form of will and witnesses, 206, 


207. 

age at which testamentary power is 
acquired, 212. 

meaning of heir, devisee, executor, 
bequest, 214. 

how wills become invalid, 229. 

devolution of property at death with- 
out kindred, 233. 

liability of executor, 242. 

alien, power of to purchase property 
and to take under a will, 292. 

operation of will, 292. 

execution on a judgment, 325. 

bankruptcy, 325 et seq. 

imperfect obligation, 342. 

bargains with expectant heirs and re- 
maindermen, 348. 

guaranty must be in writing, 383. 

formal and formless contracts, 388. 

contract of sale, 382, 393, 394. 

effect of paying earnest money, 393. 

bailments, 397. 

guaranty, 404. 

theft, 436, 437. 

aiders and abettors, liability of, 437. 

trespass and trespass on the case, 
448. 

real and personal actions, 459. 

actions relating to incorporeal here- 
ditaments, 462. 


INDEX. 


English law (continued). 
actio Personals moritur cum persons, 
5. 
wager fof battle, 471. 
conveyance of copyholda, 471. 
arrest of abscondipg debtor, 481. 
distress, 483. 
executors and administrators, rights 
and liabilities of, in actions ex 
delicto, 560. 
champerty and maintenance, 584. 
Bpistola. 
of emperors, 25, 30. 
& form of rescript, 83. 
Equites. 
Romant, 47. 
as judicial assessors, 43. 
equo publico, 47. 
Hreption for indignitas. 
different from lapse, 233. 
instances of, 231, 233—4. 
Error. 
effect of, on validity of dispositions, 


equity sometimes relieves against, 
18. 


sometimes a title to patria potestas, 
71 et seq., 74. 

of law, effect of, I3I. 

in omitting exceptio from defence, 
565. 


and see Mistake. 
Estate in remainder. 
how created in Roman law, 248, 286. 
Exacta diligentia, 452. 
Exceptio. 
object and nature of, 562, 569 et 


seq. 
stronger and weaker operation of, 
550. 
whether, affected by praescriptio, 558. 
dilatoria, 564. 
ex tempore, or ex persona, 565. 
if omitted can defence be amended ? 
565. 
whether fatal to claim, 584. 
dok mali. 
allowed in all civil law actions, 
368 
defence to action on a stipulation, 
368, 562. 
dominti, 574. 
legis Anastasianae, 405. 
Cinciae, 575. 
Juliae, 575. 
Plaetoriae, 575. 
litis dividuae, 564. 
metus causae, 503. 
pecuniae non numeratae. 
defence to action on stipulation, 
368, 562, 
within in what time, may be 
pleaded, 369, 583. 











INDEX. 


Bxoeptio (continued). 
toria, 564. 
if omitted defence may be amended, 
565. 
rei tudicatae. 
when necessary, 541, 545-6. 
discussed, 546 et seq. 
changes in law affecting, 550. 
residuae, 564. 
venditae et traditae, 574. 
Exchange. 
an innominate contract, 344, 352. 
nature of, 344. 
different from emptio et venditio, 
391, 393. 
Execution. 
after judgment in personal action, 
325-6. 
in real action, 326, 333. 
different from bankruptcy, 325-6, 


333. 
against body of debtor, 326—7, 330. 
Exercitor, 524, 526. 
Exhibere, 600. 
Existimatio. 
effect on civitaa, 117. 
caused by insolvency, 331. 
Bronerative facts, 3. 
Expensilatio. 
literal contract, 346, 385-6. 
rested on fiction of money loan, 346. 
must be unconditional, 364. 
no consideration necessary to, but 
Promisor may plead exceptio, 
368. 
nature of, mudified, 369. 
formless converted into formal con- 
tract by, 386. 
obsolete in Justinian’s time, 387. 
Expromissio, 378. 
Extranea persona. 
dominium could not be acquired 
through, 108-9 ; but see, 200. 
no substitutio to, after aditio, 247. 


Facere. 
meaning of, in the formula, 460. 
Factio, 340. 
Familiae emptor. 
meaning, 208, 205-6. 
no ono in power of, can be witness of 
a will, 204. 


remedy of publicanus, 485. 
bonorum possessor being heres, 485, 
486 


usucapio, 486. 
peregrinus being civis Romanus, 486. 
capitis deminutio, 487. 
discussed, 490. 
Fideicommissum. 
origin and object of, 275-6. 


659 


Fideicommissum (continued). 
difference between, and legatum, 275. 
tacitum, 262. 
of an hereditas, 271. 

words creating, 272. 
rights and obligations of heres 
and transferee, 272-5, 276 et 


Beq. 
of res singulae, 288. 

im on heres, 283. 
egatee, 283-4. 

what may be giveu, 288-4. 

of another person's property, 284, 
388. 

differences between, and legatum, 
charge on heres of heres, 285. 
intestate may create, 285. 
gifts by codicil, 285. 
legatee charged, 285. 
liberty to servus alienus, 285. 
women and Lex Voconia, 285. 
Latini Juniani, 285. 
slaves under 30 years old, 

285-6. 
gift after death of heres, 286. 
procedure, 286. 
payment of interest, 286. 
use of Greek, 280. 
heres disputing gift, 287. 
overpayment by mistake, 287. 
appointment of guardian, 288. 
- former differences. 
penal dispositions, 288, 
gifta to peregrini, 287. 
celibates, 287. 
orbi, 287. 
incertae personae, 287. 
Fidejussio. 
& species of intercessio, 378. 

and see Fidejussor. 


Fidejussor. ted 
how interroga 871. 
may be "to civil or natural 


obligation, 371. 

heres of, is bound, 372. 

extent of liability of, 372, 373, 374. 

position in respect of co-surety, 373. 

remedy of, against principal, 374. 

Fidepromissor. 

how interrogated, 371. 

why employed, 371. 

can only be accessory to verbal con- 
tracts, 871. 

sometimes bound when principal is 
not, 371. 

of slave or alien, whether bound, 371. 

heres of, not bound, 372. 

in Italy, 372. 

in the Provinces, 872. 

effect of, paying more than his share, 
872 


-3. 
liability of, how limited by law, 
373-4. 





660 





Fidepromissor (continued). 


has actio mandati against principal, 
374. 
ceased to be employed, 382. 


Fiducia. 


general meaning, 94. 
different from nuncupatio, 94. 
use of, in coemptio, 92-3. 
adoptio, 105. 
cum amico, 175. 
example, 102, 105. 
cum creditore, 175. 
example, 348. 


Filiusfamilias, Filiafamilias. 


powers of paterfamilias over, 61, 61-3. 

capacities and incapacities of, 63 
et seq. 

right of, to sue in own name, 64-5. 

proprietary rights of, 65, 199. 

cannot accept hereditas without 
consent of paterfamilias, 197. 

paterfamilias acquires rights through, 
197. 


cannot acquire by in jure cessio, 
199. 
testamentary capacity of, 209. — 
effect of, being passed over in will, 
filiusfamilias, 216. 
filiafamilias, 217. 
form necessary for disinheriting, 218. 
are sui et necessarii heredes, but have 
potestas abetinendi, 336. 
paterfamilias can institute heres to, 
when impubes, 246-7. 
are sui heredes in intestacy, 204. 
loans of money to, 348. 
eannot enter into stipulations with 
paterfamilías, 361. 
filiafamilias cannot be bound to any 
one by stipulation, 361. 
effect of, becoming adstipulator, 970. 
right of paterfamilias to obligationes 
acquired by, 411, 412. 
outrage upon, 449, 450, 451. 
contractis made by, at bidding, of 
paterfamilias, 523. 
when captain of a ship, 523-4. 
manager of a shop, etc., 524. 
in trade with knowledge of pater- 
familias, 524. 
conversion by, to use of paterfamilias, 
524. 
when liable to be surrendered in 
satisfaction for delict, 528-9 ; 
change of law, 530. 
how surrendered in actio noxalis, 
529. 
interdict-possession by means of, 615. 


Fiscus. 


meaning, 143. 
rights and obligations as to caduca, 
230, 232-3. 


Force, 21. 


INDEX. 


Formula. 
arbilraria, explained, 505. 
when, cannot be employed, 505. 
examples of, in real actions, 506. 
in unde vi, 592, 610-11. 
dates of valuation, how expressed in, 
509. 
in actio de peculio, and de in rem 
verso, 527. 
exercitoria, 527. 
institoria, 527. 
quod jussu, 527. 
metus causa, 582. 
when one person sues or is sued on 
behalf of another, 532. 
petitoria, 534, 538. 
Calvisiana, 322. 
Fabiana, 322. 
Octaviana, 440. 
in actio furti manifesti, 435. 
nec manifesti, 439. 
under Lex Aquilia, 449. 
in actio injuriarum, 451. 
in condictio ex causa furtiva, 463. 
Ín actio judicati, 481. 
moulded on fictio, 485-7. 
different parts of a, 4938-5, 495. 
praejudicialis, 494, 497. 
can consist of only demonstratio and 
condemnatio, 498. 
in jus concepía, 499, 500, 502. 
ex bona fide, 502. 
in factum concepta, 500, 502, 506. 
condemnatio in, always pecuniary, 
501, 504. 
sometimes either in jus or in factum, 
500, 505. 
Formulary system. 
superseded legis actiones, 484. 
advantages of, over old system, 
487-8. 
gradually superseded, 488-9. 
as to specific performance under, 501, 
507. 
procedure under, 503-4. 
some contrasts of, with legis actiones, 
596. 
Forum. 
discussed, 514 et seq. 
domicilii, 320. 
rei sitae, 515. . 
solutionis, 515. 
originis, 515. 
Foundation. 
meaning, 143. 
pious, enabled to take under will, 


143. 
Freedmen, Freedwomen. 
created by manumission, 40. 
classes of, 40, 42-5. 
guardianship of, 122. 
special regulations as to freed- 
women, 129, 182. 














INDEX. 661 


Freedmen, Freedwomen (continued). Hadrian (continued). 


rights of patron, patroness, or their condemns father for killing his son, 61. 
heres to succeed at death of, Sc. as to status of, issue of peregrinus, 
806-317. and civis Romana, 75. 

alterations by Justinian, 321-2. issue of Latinus and civis Romana, 

oath of, to patron to perform services, 78. 
etc., 355, 359. issue of peregrinus and Latins, 

and see Deditioius and Latinus and cice versa, 76. 
Junianus. issue of freewoman and slave, 76. 
Freehold tenure. women may make will without co- 

germ of, in emphyteusis, 399. emptio, 89, 208. 

Freemen. constitution: Towns may take be- 

classes of, 40. quests, 144, 270. 

Fructus licitatio, 598, 602, 612. Sc. usucapio pro herede revocable, 

became obsolete, 603. 175. 

Sc. erroris causa probatio invalidates 
definition, 431, 436. will, if testator is alive at the 
an obligation ex delicto, 425. time, orson passed over entirely, 
oblatum, 429, 436. 227. 
conceptum, 420, 435. relieves a person over 25 years of age 
lance et licio conceptum, 430, 435. who had made aditio of an 
manifestum, 428, 430, 434. hereditas, 237. 
nec manifestum, 428, 429. rescript : interest not payable on 
penalty of 429, 430, 434, 438. legacies, 286. 

a private injury, 434. Se. alien cannot take by fideicommis- 

what dealings with property con- sum, 287, 
stitute, 431. Sc. status of libertinus on obtaining 

no, without dolus, 431. civitas by imperial grant, 316. 

consent of owner prevents, 431, 432. Epistola of: gives fidejussor benefit 

by owner of thing stolen, 432. of division, 372, 38r. 

seizure of property without commit- | Heedlessness, 14. 
ting, 432. Heffter. 

aider and abettor guilty of, 488. why some actions were an extinctive 

person who may sue on account of, bar to subsequent actions, 545. 
483, 434, 438. Hereditas. 

whether impubes can commit, 434. & res incorporalis, 147. 

of a free person, 432. alienable only by in jure cessio, 166, 

remedies in addition to action for 171. 
penalty, 438, 463. effect of surrender of, 166-7, 337. 

ground for criminal prosecution, 439. could not be acquired by usucapio, 

now belongs to criminal code, 452. 174. 


portions of, could be acquired by 
usucapio, 174. 


Gaius: see Preface. how acquired, 237-9, 244, 249. 


ee Scbiniga nae of, 34. how right to, lost, 238-9, 244. 
indication of date of Institutes of, ambulatoria, 250. 
247 lapse of, how prevented, 250. 


shares in, how allotted, 250-1. 

fides commissaria, 271. 

usual form of conveyance of, 338. 
Hereditatis petitio, 602. 

possessoria, 602. 


criticiums upon, as to divisions of law, 


of res, 149-50, 152. 
Galatians. 


Gift eo in potestate, 61, 66. ea oe actio familiae herciscundae, 
Guardianship: see 'T'utela. Heres. 
liability of, for debts, 241. 
Habitatio, 157. contrasted with bonorum possessor, 
Hadrian. 04. 
many grante of Latinitas by, 49. originally a juristic person could not 
Sc. & child, whose mother is civis be, 144. 
Romana and father Latinus, is could be witness of will, 204, 206. 
civis from birth, 50. compared with heir, devisee, and exe- 


protection of slaves by, 59, 60. cutor of English law, 214. 


662 


Heres (continued). 
seus must be 
inherited 


instituted or dis- 
in wil, 210 et 


seq. 

who is, 217 et seq., 241. 

origin and object of the rules as 
to institution or disinheritance 

of, 220-22, 239-40. 

necessarius. 
meaning, 235. 
may be a slave, 235. 

& person in mancipio, but prae- 
tor gives him potestas absti- 
nendi, 236. 

protected against usucapio pro 
herede, 176. 
effect of institution of a, by an in- 
solvent, 235. 
effect of surrender of the hereditas 
by, 167, 337. 
suus et necessarius. 
meaning, 236. 
who may be, 236. 
allowed potestas abstinendi by 
praetor, 236. 
effect of surrender of hereditas by, 
167, 337. 
extraneus. ' 
meaning, 237. 
who is, 237. 
cannot refuse after interfering 
with the hereditas, 287. 
unless a minor, 237. 
how, may accept the hereditas, 
237- 
time within which, must accept, 
238-9, 243, 244. 
may lose right to acquire the here- 
ditas, 238-9, 244. 
effect of surrender of hereditas 
by, before acceptance, 337. 
after acceptance, 337. 
liability of, for debts of the de- 
ceased, 241. 
seryus suus may be instituted, but 
formerly with liberty, 248, 


249. 
limit of liability of, 235. 

effect of manumission or alienation 
of servus suus who has been in- 
stituted, 248-9. 

servus alienus may be, 240. 

effect of servus alienus being insti- 
tuted, 249. 

object of instituting servus alienus, 
249-50. 

how share of, in hereditas is allotted, 


251. 

with children, right of to caducum, 
252, 257. 

share of hereditas secured to, by 
statute, 263. 

penal institution of, void, 269. 


INDEX. 


Heres (continued). 
postumus alienus could not be, 269 ; 
but see, 270. 
capacity of a Juristic person to be, 
144, 270. 
how fideicommissum is imposed on, 


272. 

rights and obligations of, when 
charged with a fideicommis- 
sum of the inheritance, 272-5, 


277 et seq. 
may be charged with fideicommissum 
of res si , 283. 


liability of, when res aliena is given 
as a fideicommissum, 284. 
cannot be instituted or disinherited 
by fideicommissum, 285. 
may be deprived of the hereditas by 
fideicommissum, 285. 
liability of, who disputes legatum or 
fideicommissum, 287. 
when, required to give security to 
creditors, 539. 
when right to sue or liability to be 
sued passes to, 551, 559—60. 
bound quasi ex contractu to legatee, 
10. 
of an intestate, fidei commissum may 
be imposed upon, 285. 
cannot be charged with legatum, 
285. 
suus first entitled to be, 204. 
. who is, 204—5 ; and see, 241. 
children of deceased, repre- 
sent their father and take 
per stirpes, 205. 
nearest agnate is, if no sui heredes, 
296, 298. 
who is, 206-7, 289. 
no female may be, except sis- 
ter of deceased, 297, 299. 
date for ascertaining, 296, 
299. 
effect of surrender of the here- 
ditas by, 166-7, 337. 
gentiles succeed as, if no sui he- 
redes nor agnates take, 2397-8. 
changes of the law as to, by Jus- 
tinian, 299-300. 


"^ Husband. 


alienation of dos by, 187. 

capacity to take under a will, a11— 
12. 

order in which, is called to intestate 
succession, 305. 

right of, in respect of an insult to his 
wife, 450. 

when entitled to beneficium com- 
petentiae against wife, 497. 

right of, to retain part of dos, 539. 

Huschke. 

as to form of sponsio on quorum bo- 

norurm, 611. 





INDEX. 


Ignoranos. 
of fact may be pleaded, 19. 
of law cannot be pleaded, 19. 
except when defendant is a woman, 
minor, or soldier, 21. 
of moral law compared with that of 
civil and criminal, 20. 
effect of, on computation of time, 243. 
Imperfect obligation, 29. 
Imperium. 
a component part of officium juris di- 
centis, 542. 
mixium, 542, 546. 
merum, 542. 
power of magistrate invested with, 
542-3. 
contrasted with jurisdictio, 596. 
Impositive facts, 3. 
Impubes. 
who is, 133, 368. 
when called infans, 368. 
infantiae proximus, 368. 
whether, can be guilty of furtum, 
434. 
acquisition of possession by, 621. 
guardianship of: see Tutela. 
power of, to deal with property, etc. : 
see Pupillus. 
Incerta persona, 
who is, 268. 
could not take legacy, 268 ; but see, 


270. 
be appointed guardian, 268. 
freedom cannot be bequeathed to, 


268. 
could not be heres, 269; but see, 
270. 
cannot take by fideicommissum, 
287-8. 
Incorporeal hereditaments. 


resemble servitudes and jura in re 
aliena, 158. 

Infamia. 

how incurred, 117. 

effects of, on civitas, 117, 118. 

is, a capitis deminutio ! 117. 
Infans, 368. 
Infantiae proximus, 368. 
Injuria. 

meaning of, in Lex Aquilia, 442. 

in sense of outrage: see Outrage. 
In jure cessio. 

& title of jus civile, 158. 

form of, 160. 

resembles English Fines and Reco- 

veries, 161, 

hereditatis, 337. 

must be unconditional, 363. 
Innominate contraots. 

are real contracts, 348. 

how entered into, 351-3. 

examples of, 352. 

how enforced, 352. 


663 


Inofficiositas. 
filiusfamilias can impeach a will on 
ground of, 64. 
who could impeach a will on ground 
of, 240. 
Inquilinus, 397, 399. 
Insolvenoy : see Bankruptcy. 
Institor, 524, 526. 
Institution, 22. 
Intentio. 
a part of the formula, 493. 
example of, 494. 
in action by bonorum 
485. 
in actio Rutiliana, 486. 
Publiciana, 488. 
in certain actions by or against aliens, 
486 


possessor, 


sometimes found alone, 404. 
effect of claiming too much in, 511, 


519. 
too little in, 511, 519. 
Intention. 
definition, 13, r4. 
difference in effect of hasty and de- 
liberate, 15. 
distinguished from negligence, 15. 
effect of, on validity of dispositions, 
7. 
Interoessio. 
meaning, 378, 379. 
privative, 378. 
cumulative, 378. 
examples of, 378-80. 
Interdiotio aquae et ignis. 
meaning, 81. 
effect on status, 100, 115. 
Interdictum. 
nature and object of, 587. 
nature of procedure by, 598, 623-5. 
relates to subjects in alinost all de- 
partments of law, examples, 


599-600. 
classifications, 587, 588, 591, 60;. 
adipiscendae possessionis, 588. 
why so-called, 588. 
instances of, 588-0. 
de arboribus caedendis, 599. 
de clandeslina possessione, 606. 
de glande legenda, 599. 
de homine libro exhibendo, 599. 
de liberis ducendis, 599. 
exhibendis, 199 
de libertis ezhibendts, 599. 
demolitorium, 599, 607-8. 
de precario, 606. 
duplex, 591, 609. 
called mixed by Ulpian, 609. 
procedure relating to, 598-5, 603, 
612-14. 
exhibitorium, 587. 
Jrasdatorium, 600. 
ne vis flat, elc., 600. 


664 


Interdictum (costínued). 


probbitorium, 587. 
simplex or duplex, 591. 
populare, 599. 
possessorium, 600. 
quam hereditatem, 599, 607. 
quem fundum, 599, 607. 
quem usumfructum, 599, 607. 
quod legatorum, 599. 
quod vi aut clam. 
filiusfamilias can maintain, 64. 
object of, 599, 608-9. 
quorum bonorum, 588. 
place in code, 599. 


INDEX. 


Intestate succession (continued). 


descendants of children take per 

stirpes, 205. 
3. Agnati -ae, 290. 

who are, 296-7, 298. 

nearest grade of, only entitled, 
298. 

if nearest grade of, does not take 
the other grades are exc‘uded, 
290. 

time for ascertaining nearest 
grade of, 206. 

only females who are sisters by 
same father can claim as, 


form, 601. 207. 
when employed, 601-2. a brother excludes eon of a de- 
reciperandae possessionis, 590. ceased brother, 297. 


instances, 690-1. 
restitutorium, 587. 
relinendae possesstonis, 589. 
instances, 589—90. , 
Salvianum, 351, 589. 


when only, are children of de- 
ceased brothers they all take 
per capita, 297. 
3. Gentiles, 207-8. 
Harsh operation of rules of, by XII 


place in code, 599. Tables, 300. 
sectorium, 589. corrected by Praetor's edict, 300. 
secundarium, 595, 603, 614. Order of Praetorian Law. 

place in code, 600. I. Unde liberi. 


simplex, 591. 
procedure relating to, 592-3, 
610-12. 
uti possidetis, 589. 
place in code, 599, 600. 


emancipated children sbare with 
sui et suae heredes, 300, 
305. 
3. Unde legitimi. 
agnates and other statutory he- 


form, 592, 603. redes, 305. 
duplex but sometimes simplex, 3. Unde cognati. 

609, 610. agnates who had suffered capitis 
might be retinendae or recuper- deminutio, 301. 

andae possessionis, 604. agnates in remoter degree, 301. 
utrubi assimilated to, 604. female agnates beyond the degree 
compared with unde vi, 606. of sistere, 301. 

ulrubi, 589-90. persons who trace descent through 

place in code, 599, 600. femsles, 301. 


form, 592, 603. 

assimilated to uti possidetis, 604. 

might be retinendae or recuper- 
andae posseasionis, 604. 

unde tu sllum ci dejecisti, 590-1. 

place in eode, 599. 

two forms, quotidianum, 604, 605. 
de vi armata, 604, 605. 

only applied to immovables, 605. 

new form applicable to movables, 


5. 
why used instead of uti possidetias, 


Interdict-possession, 615. 
Interest. 


on money loan, could only be secured 
by stipulation, 510. 
on legacies, 286. 


children in adoptive family, 301. 
those who neglected to claim as 
sui heredes or agnates, 305. 
all the above take as cognates, 
305. 
4. Unde vir et uxor : 
husband and wife, when the 
wife is not in manu, 305. 
grant of, by Praetor's edict only gives 
grantee bonorum possessio, 
801-2, 304. 
how, and within what time, must be 
claimed by Praetorian law, 


306. 

effect of grant of, by Praetor's edict 
when & person in & superior 
degree is passed over, 306. 

to freedmen : see under Freedmen. 





| 
on fideicommissa, 286. Investitive facts, 3. 


Intestate succession. Islands. 
order of, by XII Tables. property in, 185 
I. sui heredes, 204. Italic soil. 


who are, 304-5. meaning, 98. 


INDEX. 


Judex. 
pedaneus, 489. 
must always condemn in a definite 
sum, 501. 
may condemn in lees but not in more 
than som fixed in formula, 502. 
might make a cause his own, 502, 
510. 
Judicis postulatio. 
a legis actio, 467-8. 
explained, 472. 
when applicable, 473. 
Judicium. 
calumniae, 626, 627, 630. 
contrarium, 626, 027, 630. 
Cascellianum, 503, 504, 505. 
also called secutorium, 594. 
security in, 538. 
J*ructuarium, 538, 595. 
called also secutorium but not 
Cascellianum, 595. 
quod imperio continetur. 
meaning, 541. 
not extinctive bar to a subsequent 
action, 541, 545. 
an action founded on a lex may 
be, 542. 
an action founded on edict and 
brought at Rome is not always 
a, 642. 
legitimum. 
meaning, 540. 
expires in year and six months, 
540 


when an extinctive bar, 541; 
but see, 545. 
every action founded on lex is not, 
541-2. 
action founded on edict and 
brought at Rome may be, 542. 
secutorium, 504. 
sometimes called Cascellianum, 
594. 
fructuarium, 505. 
probable intentio in, 611. 
effect of bringing, 613. 
when, is absolutorium, 560, 561. 
Jura. 
rerum, 7. 
personarum, 7. 
$n re, in re aliena, 154. 
Juramentum in litem. 
meaning, 476. 
when available, 476. 
Jurata promissio liberti. 
form of, 355. 
explained, 359. 
Juris auctor, 34. 
Jurisdictio. 
in narrow sense, à component part of 
officium jus dicentis, 542. 
in wider sense, same ns officium jus 
dicentis, 543. 


665 


Jurisdictio (continued). 

antithesis of, and lex, 543. 

contrasted with imperium, 596. 
Jurisprudence. 

subject matter of, 2, 23. 

dogmatic, 23. 

historic, 23. 

comparative, 23. 

treats exclusively of positive law, 


26. 
Juristic persons. 
meaning, 142. 
different kinds of, 143-5. 
capacity of, to take legacies, 144, 


170. 
to take inheritances, 144, 170. 
Juriste. 
authority of responsa of, 26, 33. 
limitation of authority of, by law of 
citations, 34. 
writings of, prohibited by Justinian, 


34- 
rival schools of, 133-5. 
list of some of the more illustrious, 


135. 
chief controversies between— 
as to puberty, 183. 

res mancipii, 159. 

surrender by heres necessarius, 
167. 

specificatio, 186, 193. 

son being passed over in father’s 
will and dying in lifetime of 
father, 216. 

vulgaris substitutio, 245. 

property passing by legacy per 
vindicationem, 253. 

ownership when legacy per vindi- 
cationem is conditional, 255. 

legacy per praeceptionem to a 
stranger, 258-60. 

tutor appointed by will before in- 
stitution of heres, 267. 

legacy to à person in potestate of 
heres, 269, 271. 

effect of Sc. ianum when 
children of patron are co-heredes 
with a stranger, 314. 

whether Sc. Largianum applied to 
children of daughter or grand- 
daughter of patron, 315. 

in jure cessio of hereditas by suus, 
and necessarius heres, 337. 

impossible conditions in gifts by 
will, 359. 

promise to stipulator and stranger, 
860. 

capacity of aliens to enter into 
literal contracts, 884. 

price in emptio et venditio, 380, 
891, 393. 

recommendation creating manda- 
tum, 402. 





666 INDEX. 


Jurists (continued). 


Justinian (continued). 
chief controversies between— 





as to obligationes acquired by servus 
communis, 412, 412. 
substituted solutio, 418, 417. 
conditional novatio, 415. 
extinguishmentofactiones noxales, 


529. 

mancipatio of son in noxal sur- 
render, 529. 

what judicia were absolutoria, 
560. 


Jus. 


civile, definition, 25, 27. 
examples of institutions belonging 
to, 27. 
effect of collision of, with jus na- 
turale, 114. 
edicendi, in whom vested, 26, 31. 
how exercised, 31. 
faciendi, 156. 
gentium, definition, 25. 
how promulgated, 26. 
examples of institutions belonging 
to, 38. 
obligations, how far recognised by 
jus civile, 28. 
slavery introduced by, contrary to 
jus naturale, 58, 60 
habendi, 156. 
honorarium, origin of, 31. 
kept distinct from jus civile, 32. 
in personam, 6. 
not classical, 7. 
in rem, 6. 
not classical, 7. 
Italicum, 98, 1653. 
naturale. 
slavery contrary to, 60. 
effect of collision of, with jus 
civile, 114. 
prohibends, 157. 
quiritium, synonymous with civitas 
mana, 54. 


Jusjurandum. 


in litem, 508. 
necessarium, 499. 
non calumniae causae, etc., 626. 


Justinian. 


why constitutions had force of law, 


3o. 

prohibits juristic writings, 34- 

simplifies form of emancipation and 
adoption, 106. 

cognates guardiansin place of agnates, 
I14. 

minors could not be tutores, 127. 

forms of guardianship in time of, 128. 

as to alienation of dos, 195. 

changes in law of wills in time of, 
206-7. 

as to disinheritance of sui heredes, 
222. 


benefice of inventory introduced, 241. 
cretio abolished, 244. 
institution of servus suus as heres 
implies gift of freedom, 249. 
leges caducariae abrogated, 252. 
as to dies cedit, 2352. 
all legacies to be of one nature, 261. 
as to legacies to incertae personae, 
etc., 270. 
legacies to juristic persons, 270. 
Sc. Trebellianum and Pegasia- 
num, 280. 
fideicommissum of res aliena, 
388. 
five witnesses to codicils, 389. 
alterations in Law Terms and Vaca- 
tions, 290. 
distinction between  fideicommissa 
and legacies abolished, 292. 
alterations in rules of intestate suc- 
cession, 299. 
title by agnatio abolished, 399- 300. 
dediticii and Latini J uniani abolished, 
2I. 
alterations in rules of succession to 
freedmen, 321. 
usus and ususfructus not exiting uished 
by capitis deminutio minima, 


330. 
as to payment to pupillus by mistake, 
8 


348. 
contracts taking effect after the 
death of the parties, 365, 366. 
payment to stipulator and third 
party, 367. 
exceptio when contract is in 
writing, 369. 
only actual satisfaction consumes 
right of action, 377. 
beneficium excussionis introduced, 
381. 
as to price being fixed by arbitrator, 
393, 396. 
arrha, 393. 
consideration for locatio conductio, 


399. 

agent exceeding his authority, 
407. 

obligatio acquired by servus com- 
munis, 412. 


novatio, 419, 420. 
definition of furtum manifestum, 434. 


436. 
as to damages for breach of contract, 


440. 
action of legatee for twice the 
value of the legacy, 467. 
rules as to litis aestimatio, 509. 
changes in law as to plus petitio, 


519. 
compensatio extended to real actions, 
523. 


INDEX. 


Justinian (continued). 
as to extinguishment of actiones nox- 
ales, 530. 
Judicatum solvi, 540. 
pendency of actions, 544. 
longi temporis praescriptio, 552. 
longissimi temporis praescriptio, 


552. 
Judicia being absolutoria, 561. 
prescription of exceptio pecuniae 
non numeratae, 581. 
ree litigiosa, 584. 


Keller. 
form of interdictum quotidianum, 


O4. 
Knowledge. 
effect of, on computation of time, 


243. 


Labeo. 
his definition of dolus, 16. 
founder of Proculian school, 134. 
his codicilli, 288. 
Lapse. 
caused by death of heres in lifetime of 
testator, 250. 
means of preventing, 250. 
effect of, of share of a co-heres, 251. 
of a legacy per vindicationem, 255, 
250-7. 
per damnationem, 256-7. 
Latinitas. 
meaning, 49. 
conferred as boon, 49, 81. 
majus, 82, 83. 
minus, 82, 83. 
Latinus. 
coloniarius, status of, 101. 
Latinus Junianus assimilated to, 
48. 
Junianus, created by lex Junia Nor- 
bana, 44, 47, 48, 311., 
who was a, 43, 44. 
status of, 44, 48, 49. 
posterity of, free from disabilities, 


49- 

could not take under a will, except 
will of a soldier or by fidei- 
commissum, 44, 208, 311; but 
see, 252. 

could be witness of a will, 49. 

goods of deceased, belong to 
patron, 311. 

right of patron of, and patron's 
children and heres, under Sc. 
Largianum, 313-5. 

imperial grant of civitas to, gave 
limited testamentary capacity, 
3180. 

abolished by Justinian, 321. 

modes of becoming a Roman 
citizen—marriage and birth of 


667 


Latinus (continued). 
child under certain conditions, 
50-1. 
six years military service, 51. 
building ships, etc., 51. 
building house, etc., 51. 
carrying on business of miller, 52. 
re-manumission, 53. 
erroris causae probatio, 72. 
summary of methods, 53-4. 
status of offspring of, 75, 70. 
guardianship of, 123, 124. 
bas connubium if specially privileged, 
66, 69. 
Latium : «ce Latinitas. 
Law. 
definition, 2. 
sources of, 25. 
of persons and of things, discussion 
upon, 35. 
of equal and unequal rights, 36-7. 
of status, 36. 
Legacy. 
different kinds of, 253. 
per vindicationem, meaning, 253. 
form, 253. 
what may be left by, 254. 
time when property in, passes to 
legatee, 253-4. 
effect of thing bequeathed by, 
being alienated, 254. 
effect of, when joint or several, 
255, 256. 
effect of condition upon, 255. 
lapse of, 255, 256-7. 
effect of Sc. of Nero on, 254, 261. 
per damnationem, meaning, 255. 
form, 255. 
what may be left by, 255. 
time when property in, passes, 
258. 
effect of, when joint or several, 
250. 
lapse of, 256-7. 
stnendi modo, form, 257. 
what may be left by, 257. 
time when property in, passes, 
257-8. 
whether heres is bound to convey, 
258. 
effect when several, 258. 
effect of Sc. of Nero on, 261. 
per praeceptionem, form, 258. 
dispute whether any one except 
co-heres could take, 258-9, 
260. 
means of enforcing, 260. 
effect of, when joint or several, 
260. 
effect of Sc. of Nero on, 259, 260, 
261. 
alterations in the law as tu, 254, 257, 
261. 


668 


Legacy (continued). 
of part of an inheritance, probable 
origin of, 265, 278. 
explained, 278, 278. 
to juristic persons, 144, 270. 
given before institution of heres, 260, 


270. 

to take effect after death of heres, 267, 
270. 

poenae nomine, 267, 268, 270. 

to incertae personae, 268, 270. 

to after-born strangers, 268, 270. 

to & person in potestate of heres, 269, 
271. 

conditional, eompared with condi- 
tional contract, 271. 

recovered by judex and formula, 
288. 

cases relating to, only heard in term 
time, 288. 

interest not generally payable on, 286, 
290. 

surety for, exempt from lex Cornelia, 
874. 

how released per aes et libram, 414, 

] 418. 

difference between, and fideicom- 
missum, 275, 285 et seq.; see 
under Fideicommissum. 

Legatarius: see Legatee. 
Legatee. 
can be witness of the will, 204. 
partiary, meaning, 273, 278. 
stipulation by, 278, 278. 

may be charged with fideicommissum, 
288-4. 

cannot be charged with legatum, 
285. 

heres bound quasi ex contractu to, 


411. 
has actio legati against heres, 411. 
Legatus. 
jurisdiction of, 33. 
Caesaris, 33. 

Leges Caducariae, were the lex Julia 
de mnritandis, and lex Papia 
Poppaea, 251. 

effect of, 351-2. 
abrogated by Justinian, 252. 
Leges Juliae. 
finally abolished legis actiones, 484, 
487. 
what were the, 487. 
Legis actiones. 
why so called, 467. 
five forms of, sacramentum, 467,468, 
479. 
judicis postulatio, 467, 472. 
condictio, 468, 471, 472. 
manus injectio, 468, 477, 479. 
pignoris capio, 468, 482, 483. 


abolished, except in two cases, 484, 


487. 


INDEX. 


Legis actiones (continued). 

deficiency of, 487. 

& person could sue or be sued by, as 
representative of another in 
certain cases, 531, 532-3. 

always an extinctive bar to subse- 
quent actions, 541. 

contrasted with Formulary procedure, 


596-7. 
Leo. 


constitution ; error of law not to ex- 
cuse women, 132. 

municipalities to be capable of being 
successors, 144, 270. 

constitution ; necessity of consecrated 
terms in stipulations abolished, 
358. 


x. 
definition, 25. 
regia, or imperii, 30. 
Bithynorum, 130. 
minus quam perfecta, 264. 
Aebutia. 
as to abolition of legis actiones, 


Le 


when passed and object, 46. 

as to dediticii, 43, 44-5, 316-7. 

conditions of valid manumission, 
43, 54-5. 

as to Latini attaining civitas 
Romana, 50, 51. 

Latinus married to Latina or civis 
Romana may obtain patria po- 
testas, 71. 

as to manumitter being under 
twenty years of age, 54-5. 

evaded by fideicommissum, 285. 

devolution of goods of dediticius, 
816-7. 

A. ppuleia. 

sponsores and  fidepromissores 
who had paid more than their 
share could recover excess from 
co-sureties, 872, 381. 

did not apply to fidejussores, 373. 

Aquilia. 

& plebiscitum, 29. 

when passed, 444. 

Cap. I, 441, 444. 

Cap. II, 442. 

Cap. ILI, 443, 447. 

measure of damages under, 442. 
443, 444. 

actions under, 444, 447-8. 
compared with English law, 448. 

creates obligatio ex delicto, 425. 

noxalis actio under, 528. 

Atilia. 

as to appointment of guardians at 

Rome by magistrates, 127. 
Calpurnia. 
extended condictio, 472, 472. 





INDEX. 669 


Lex (continued). 
Censoria. 
as to pignoris capio, 482. 
Cicereia. 
sureties entitled to declaration by 
creditors of amount of the debt, 
etc., 973, 381. 
Claudia. 
abolished agnatic guardianship of 
women, 94, 1138. 
right of agnates to create cessicia 
tutela of females, 124. 
Cornelia. 
limits amount for which sureties 
may be liable, 373-4, 382. 
repetundarum. 
as to extortion by governors of 
provinces, 440. 
testamentaria. 
as to wills of persons taken 
captive, 210. 
Crepereia. 
as to amount of deposit in an 
action, 535, 538. 
Falcidia. 
heres to receive a fourth of inherit- 
apce, 263. 
chief clauses of, 265-6. 
operation of, in connection with 
fideicommisea, 281. 
Fufia Caninia. 
limits number of slaves to be 
manumitted by will, 55-7. 
slaves must be manumitted by 
name, 268. 
abrogated by Justinian, 57. 
Furia de sponsu. 
as to liability of sponsores and 
fidepromissores, 373, 381. 
only extended to Italy, 373. 
not a lex perfecta, 479. 
as to manus injectio, 478, 480. 
Furia testamentaria. 
a plebiscitum, 29. 
legacy or donatio mortis causa not 
to exceed 1000 asses, 203. 
was a minus quam perfecta lex,264. 
exceptae personae under, 265. 
a8 to manus injectio, 478, 480. 
Hortensia. 
plebiscita made binding on popu- 
lus, 25. 
Julia. 
permitted cessio bonorum, 328, 


329. 
Julia de adulteriis. 
a8 to repudium, 108. 
as to alienation of dos, 187, 195. 
Julia de maritandis. 
as to right of state to caduca, 230, 
232. 
incorporated with lex Papia Pop- 
paea, 251. 


Jaex (continued). 


Julia de vi publica et privata. 

penalty for violence, 440. 

Julia et Papia. 

a mode of referring to the lex 
Julia de Maritandis and lex 
Papia Poppaes, 251. 

Julia et Plautia. 

No usucapio of things taken by 

violence, 172. 
Julia et Titia. 

as to appointment of guardians in 
the provinces by magistrates, 
128. 

Julia municipalis. 
civitas Romana given to whole 
of Italy, 219. 
Julia judiciaria. 
as to judicia legitima, 540, 544. 
Julia vicesima (or vicesimaria). 
imposed a duty on testamentary 
succession of cives Romani, 374, 
38a. 
Junia Norbana. 

created Latini Juniani, 44, 47, 48. 

as to Latinus Junianus acquiring 
civitas by marriage, according 
to Ulpian, 50, 52. 

Junia Vellaea. 

as to postumi liberi and those who 
succeed to place of sui heredes, 
219. 

Marcia. 
as to manus injectio, 478. 
quadruple penalty, 480. 
Minicia. 
if civis Romanus marries peregrina 
or peregrinus marries civis Ro- 
mana, not having connubium, 
the offspring is alien, 75, 77. 
Papia Poppaea. 

connubium between ingenui -ae, 
and libertini -ae, 7o. 

exemption from tutela, 109. 

incorporation of provisions of lex 
Julia de Maritandis, 251. 

ag to caducum, 252. 

dies cedit at opening of will in 
absence of condition, 252. 

as to lapsed legacies, 256-7. 

as to patron’s right to share with 
children of freedmen, 307. 

four children release freedwoman 
from tutela of patron, 308. 
but patron is entitled to share 

of a child if she makes a will, 
808. 

as to right of patron's daughter 
to inheritance of freedwomen, 
308-9. 

as to right of patroness to inherit- 
ance of s freedwoman who is 
civis Romana, 309-10. 


670 


Lex (continued). 
Petronia. 
a slave not to be exposed to wild 
beasts, 59. 
Pinaria. 
as to time of nomination of judex 
in sacramentum, 468 
Plaetoria. 
against defrauding minors, 137, 
575. 
Poetelia. 
abolished nexum a3 a form of con- 
tract, 346. 
Pompeia de parricidiis. 
paterfamilias not subject to, 61. 
Publilia. 
sponsor could recover double from 
principal unless repaid in 6 
months, 374, 382. 
lex Cornelia does not apply to 
sureties under, 374. 
as to manus injectio, 478. 
Silia. 
created condictio, 472, 472. 
Soribonia. 
abolished usucapio of servitudes, 
170. 
XII Tabularum. 
trinoctio abesse, 85, go. 
vestal virgins exempt from tutela, 
109. 
agnatic guardianship, 112, 113. 
guardianship by patrons, arose 
from interpretation of, 122. 
curatio of lunatics and prodigals 
regulated, 138. 
as to usucapio of movables and 
immovables, 172. 
no usucapio of things stolen, 172. 
as tousucapio of res mancipii of 
women in tutela of agnates, 172. 
agnatic committee of lunatic can 
alienate lunatic's property, 187. 
as to passing of property in con- 
tract of sale, 190 
recognises testamentary disposi- 
tion, 205. 
recognises testamentary words of 
clause, 263, 264. 
as to intestate succeasion, words of 
clause, 298, 299. 
of sui heredes, 204. 
of nearest agnates, 296 ; words 
of the lex, 298. 
of gentiles, 297-8. 
right of patron and “his heres to 
inheritance of his freedmen, 306, 
808, 309. 
proceedings i in manus injectio, 828, 
326-7, 477, 480. 
penalty for theft, 420, 480. 
injuria (outrage) 450; but see, 
452. 


INDEX. 


Lex (continued). 
amount of penal sum in sacra- 
mentum respecting liberty, 468. 
as to pignoris capio, 482. 
actio noxalis for theft, 528. 
noxae deditio for pauperies, 531. 
as to vindiciae dicendae, 614. 
Vallia. 
as to manus injectio, 478. 
Voconia. 
legatee or donee mortis causa not 
to take more than heres, 283. | 
other provisions of, 265. 
evaded by fideicommissa, 285. 
Libellary Procedure. 
superseded formulary procedure, 489. 
sketch of, 631-2. 
Libellus conventionis, 631. 
Liberal professions. 
what were, 408. 
remuneration of, 408. 
Libripens. 
meaning, 203. 
no one in power of, can be witness of 
& will, 204. 
Limitation of actions. 
different from usucapio, 181. 
and see under actions. 
Literal contraot. 
how entered into, 383, 385. 
debita to cash are not, 384. 
whether aliens are bound by, 
384. 
chirographum a form of, 884. 
syngrapha a form of, 384. 
expensilatio a form of, 385. 
is unilateral, 390. 
cancelled by accepti relatio, 418. 
Litis aestimatio. 
when ascertained by oath of plaintiff, 
o8 





508. 
date for valuation, 508. 
how assessed, 509. 
Litis contestatio. 
a kind of quasi-contract, 291. 
consequences of, similar to effect of 
mora and mala fide possessio, 
291-2. 
judgment relates back to time of, 
292; but see, 561. 
effect of, respecting solidarity and 
correality, 377- 
in extinguishing obligations, 416, 
4a. 
meaning of, 420. 
the various operations and effects of, 
collected, 421-5. 
Litteris obligatio: see Literal con- 
tract. 
Looatio et conduotio. 
how entered into, 394. 
sometimes closely akin to emptio et 
venditio, 305. 


INDEX. 671 


Loocatio et conduotio (continued). 
whether consideration must be money, 
395, 396. 
emphyteusis resembles, 396. 
who is locator and who conductor 
under? 397-8. 
degree of diligence required in, 453. 
Locator. 
who is, 397. 
Lunatic. 
cannot enter into any contract, 361. 
under curator though not a minor, 138. 


Manoipatio. 
form, 96. 
what may be conveyed by, 96. 
only Roman citizens can be parties to, 
96 


origin of, 162. 
a title of jus civile, 158. 
a form of testamentary disposition, 
208, 205. 
must be unconditional, 363. 
Mancipatory Will, 205. 
and see under Will per aes et libram. 
Mancipii causa, Mancipium. 
who are in, 95. 
how created, 96. 
legal effect of, 62, 97-8. 
how different from manus, 99. 
how extinguished, 107. 
sometimes extinguished without con- 
sent of master, 107, 108. 
persons in, acquire dominium for the 
master, 197. 
whether persons in, acquire possession 
for the master, 197. 
persons in, cannot acquire by in jure 
cessio, 190, 201. 
ceased to exist before J ustinian's time, 
199. 
as to persons in, being instituted 
heredes by master, 236. 
person in, not bound by any stipa- 
lation, 361. 
cannot be adstipulator, 370. 
obligations acquired by, 411. 
actions ex contractu against, 529. 
Mandatum. 
a consensual contract, 389. 
qualificatum, 380, 404. 
motive for introduction of, 382. 
how entered into, 401-2, 403. 
will a recommendation create? 402. 
is void, if to be executed after agent's 
death, 402. 
how terminated, 402. 
effect of execution of, after princi- 
pal’s death, 408. 
agent deviating from terms of, 
403, 407. 
English law bearing on, 404. 
delegatio a species of, 404. 


Mandatum (continued). 

assignatio a species of, 405. 

agendé, 406. 

is gratuitous, 403 ; but see, 408. 

degree of diligence required in, 453. 
Magistrates. 

power of issuing edicts, 31. 

old republican and imperial nominees, 


32. 
imperium and jurisdictio of, 542. 
Maine. 
origin of testamentary dispositions, 


303. 
Malice. 
meaning in English law, 17. 
Manumission. 
how effected, 43, 44. 
a public or private act, 45, 48. 
restraints on, 42, 43, 54-7. 
and see Freedmen. 
Manus. 
meaning, 87. 
father has, over wife of a son in po- 
testate, 63. 
how created, 87, 88. 
peculiar to Roman citizens, 87. 
legal effect of, 89, 335 -6. 
gradually became obsolete, go. 
ceased to exist before Justinian's 
time, 199. 
extinguished by mancipation and 
manumission, 106. 
of husband, how different from that 
of other persons, 106. 
person in, acquires dominium for 
person who. has, 197. 
whether person in, acquires possession 
for person who has, 197. 
person in, cannot acquire by in jure 
cessio, 199, 201. 
as to obligationes acquired by person 
in, 411. 
effect on debts of women who became 
subject to, 487, 493, 529. 
Manus injectio. 
a legis actio, 468. 
procedure, 477, 478, 326. 
pro judicato, 477. 
pura, 478. 
when applicable, 477-8, 480. 
when a mode of self-redress, 479. 
a form of execution, 326-7, 330. 
Marcus Aurelius. 
grants of civitas Romana by, 82. 
constitution ; as to curators, 186, 138. 
as to juxta-tabular possession, 213, 


* v 


215. 
forfeiture for indignitas, 231, 234. 
pro herede gestio, 247. 
pupillaris implied in vulgaris substi- 
tutio and vice versa, 248. 
alterations in Law Terms and vaca- 
tions, 290. 





672 


Marcus Aurelius (continued), 

exceptio doli mali might be pleaded 
in all civil law actions, 368. 

constitution; exceptio pecuniae non 
numeratae barred after five 
years when stipulation was evi- 
denced by writing, 369. 

rescript ; as to compensatio, 522, 523. 

Marriage. 

whether a contract ? 68-9. 

parties must have connubium, 66, 
69-70. 

between ascendants and descendants 
prohibited, 66. 

between certain collaterals prohibited, 
67, 70. 

between some relations by marriage 
probibited, 67, 70. 

nefarious and incestuous, no marriage, 
67. 

requires consent of paterfamilias, 71. 

& means of acquiring patria potestas, 


civil, 69. 
gentile, 69. 
effect of, between— 
Latinus and Latina, 71. 
and civis Romana, 71, 75. 
civis Romanus and Latina or pere- 
grina, 66, 71, 74, 75. 
and libertina dediticiorum nu- 
mero, 72. 
civis Romana and peregrinua, 72, 
73, 74, 75. 
and libertinus dediticiorum nu- 
mero, 72. 
Latina and peregrinus, 72, 75. 
Latinus and peregrina, 72, 75. 
civis Romanus, thinking himself 
Latinus, 72. 
civis Romanus, thinking himself 
inus, 73. 
how dissolved, 108, 116. 
See Manus. 
Metus. 
ground for exceptio, 581. 
actio and in integrum restitutio, 
581. 
Military Will, 208, 208. 
Minor. 
who is, 137. 
curator appointed to, 186, 137. 
legal effect of appointment of curator 
to, 138. 
nature of curator's obligation to, 410. 
Missio in possessionem. 


explained, 324, 327-8. 
Mistake. 
effect of payment of legacy by, 287, 
292. 


fideicommissum by, 287, 292. 
money by, 347, 411. 
money by, to pupillus, 347. 


INDEX. 


Mistake (continued). 
effect of payment of money by, to 
& woman, 347. 
effect of as to subject of claim in an 
action, 512, 519. 
Modestinus. 
authority of writings of, 34. 
short account of, 135. 
Mora. 
interest on legacies and fideicommissa 
payable from date of, 290. 
when, commences, 290. 
different from nativity of action, 291, 


555- 

corresponds tu mala fides, 291. 

demand of payment not always nece:- 
sary to cause, 291. 

genuine doubt as to liability prevents, 
291. 

Municipality. 
meaning, 318. 
capacity of, to be heres or legatee, 


144. 

how citizenship in, acquired, 318-19. 

chief effecta of citizenship in, 319. 
Municipium; see Municipality. 
Mutuum. 

effect, of, by pupillus, 195, 196. 

by a woman, 198. 

& contract, 347. 

how entered into, 347. 

is gratuitous, 348. 

no interest payable on, except by 

stipulation, 348. 
how enforced, 348. 


Naturalis obligatio. 
meaning and effect of, 39, 341. 
instances of, 114. 
novatio produced by, 419. 
Naturalization. 
in English law, 83. 
Negligence. 
definitions, 13, 15. 
ignorance of law regarded as, 19, 20. 
degrees of, discussed, 452—4. 
Negotiable paper. 
not recognised in Roman law, 407. 
Negotiorum gestor. 
meaning, 533. 
. nature of obligation of, 4to. 
Nemo pro parte testatus, eto. 
origin of maxim, 221. 
effect of rule upon share of heres, 
251. 
Neratius, 134. 
Nero. 
enacts that building houses, etc. con- 
fers civitas Romana, 51. 
So. of as to form of legacies, 254, 
257, 261. 
Sc. Trebelianum in reign of, 378, 
277. 


INDEX. 


Nerva 
and Hadrian, constitution; all ju- 
ristic persons can take legacies, 
144, 270. 
Nexum. 
a mode of alienation, 345. 
a form of contract, 346. 
abolished by lex Poetelia, 346. 
a mode of extinguishing an obliga- 
tion, 345; 346, 414, 418. 
Nomina arcaria. 
meaning, 388. 
create real obligation, 284. 
Nomine transcriptitia. 
meaning, 883. 
origin of term, 387. 
Novatio. 
formerly the only mode of transferring 
obligations, 167. 
obligations extinguished by, 414. 
when new term essential, 415. 
effect of a woman being a party to, 
4165. 
pupillus being a party to, 415. 
slave being a party to, 415. 
when conditional, 415, 419. 
by Aquilian stipulation, 417. 
naturalis obligatio may operate as, 
414, 419. 
doubt whether addition of sponsor 
produces, 415, 419. 
necessaria, 421. 
voluntarta, 421. 
produced by judgment, 416, 421. 
Noxae deditio, 531 ; see Actio noxalis. 
Wuda paotio. 
meaning, 344. 
produces naturalis obligatio only, 


344- 

can be used as an exceptio, 344. 375. 

effect of, to pay interest, 344, 510. 
N'uds repromissio. 

meaning, 383. 
Nudum pactum: see Nuda paotio. 
Nunocupatio. 

meaning of, in making a will, 204. 
Nuncupative will, 207. 
Nuptiae, 66: and sce Marriage. 


Obligatio, obligation. 
definition, 2. 
of Justinian, 340. 
relative, 3. “4° 
absolute, 3. 
& res incorporalis, 147. 
question as to transfer of, 167, 405 
et seq. 
ez contractu, 838, 342. 
re, 839. 
verbis, 339. 
litteris, 339. 
consensu, 839. 


673 


Obligatio, obligation (continued). 
ez delicto, 888, 3423. 
different kinds of, 425. 
whether doctrine of possession be- 
longs to, 454. 
implies compulsion, 339. 
in narrower sense, excludes duties 
imposed on all the world, 339. 
performance of, three elements, 340. 
always transformable into money pay- 
ment, 340—I. 
divisions of, 838, 341-2. 
civilis, 341. 
quasi ex contracts, 342, 410. 
delicto, 343. 
naturalis, meaning and effect of, 39, 
341. 
instances of, 114. 
compared with English law, 342. 
may produce novatio, 419. 
through what persons, may be ac- 
quired, 200, 366-7, 408-9, 411. 
extinguishment of, by solutio, 418. 
by same kind of agreement by 
which it was created, 418. 
acceptilatio, 413. 
per aes et libram, 414. 
novatio, 414, 419. 
litis contestatio, 416. 
Ocoupatio. 
a title of jus gentium, 184. 
instances of, 184. 
Officium jus dicentis. 
explained, 542, 543. 
Omnis judicia esse absolutoria, 560, . 
561-2. 
Orbi, 
definition, 252. 
limited right of, to take inheritances 
and legacies, 208, 252. 
disabilities of, inapplieable to will of 
a soldier, 208, 211. 
disabilities extended to fideioommissa, 
287. 
Origo. 
confers civitas in a municipality, 
318. 
determines & person's general forum, 
320. 
Ortolan. 
as to marriage contract, 68. 
Outrage (injuria). 
meaning, 451. 
obligatio ex delioto created by, 425. 
what constitutes, 449, 450. 
through whom, may be suffered, 449, 
450. 
penalty for, 450. 
degrees of, 451. 
requires dolus malus, 451. 


is ground for civil or pro- 
ceedings, 451. 
now belongs to criminal code, 452. 


674 


Papinianus. 
authority of writings of, 34. 
short account of, 134. 
Partiarius legatarius. 
definition, 273, 278. 
stipulations between, and heres, 273. 
Partiary legatee : see above. 
Partner. 
when entitled to beneficium compe- 
tentiae, 497. 
and see Societas. 
Paterfamilias. 
power of, over slaves, 58-9, 59-60. 
over person of descendant, 61, 


I. 
over property of descendant, 62, 
5. 
has nsafract in peculium adventicium, 


5. 
consent of, necessary to marriage of 
those in potestate, 71. 
acquires dominium by persons in his 
power, 107. 
possessio by persons in his power, 
except, perhaps, those in manu 
or mancipio, 197. 
aoquires obligations by persons in his 
power, 411, 412. 
outrage inflicted upon, through per- 
sons in his power, 449, 450, 


457: 
when, ontitled to beneficium compe- 
tentiae, 497. 
liability of, when filius familias or 
ve enters into a contract, by 
his order, 523. 
as his exercitor or institor, 523—4. 
in trade with his knowledge, 524. 
without his consent, 824-5. 
no valid stipulation between, and 
those in his power, 861. 
liability of, for delicts of those in his 
power, 528-9. 
Patria potestas. 
peculiar to citizens of Rome, 61. 
nature of, 61 et seq. 
& consequence of jusiae nuptiae, 61, 
66 


erroris causae probatio, 71 et seq. 
compliance with a provision of 
lex Aelia Sentia, 50, 71. 
express grant of emperor, 84. 
majus latium, 81-2. 
adoptio, 83; but see, 87. 
legitimation, 92. 
not obtained by alien becoming civis 
Romanus unlees expressly grant- 
ed, 84, 220. 
extinguished by death, 100. 
interdiction from fire and water, 


100. 
filius-familias becoming flamen, 
101. 


INDEX. 


Patria potestas (continued). 
filisfamilias becoming a vestal 
virgin, IOI, 
becoming a Latin oolonist; for- 
merly, 101. 
emancipatio, 102, 108. 
giving in adoptio, 108 ; but see, 87. 
Patrona. 
right of, to inheritance of libertus 
civis nus— 
by XII Tables, 808. 
lex Papia Poppaea, 309, 810. 
right of, to inheritance of liberta 
civis Romana before lex Papia 
Poppaea, 809. 
under lex Papia Poppaea, 809— 
10 


right of son of, to inheritance of li- 
bertus -a civis Romanus -a, 310. 
cannot be summoned by libertus 
without praetor's leave, 628. 
Patronus. 
right of, to tutela of liberti -ae, 139. 
when tutor and absent cannot be 
superseded, 125, 128. 
powers of, when tutor of women, 
129-30. 
authority of, necessary to grant of 
juxta-tabular possession under 
& woman's will, 213. 
right of, to. inheritance of libertus 
civis Romanus— 
by XII Tables, 306. 
Praetor's edict, 807. 
lex Papia Poppaea, 307. 
right of, to inheritance of liberta civis 
Romana— 
before lex Papia Poppaea, 807. 
under lex Papia Poppaea, 308. 
rights of, to inheritance of libertus -a 
pass to all male descendants 
through males, 308. 
right of daughter, and granddaughter 
and great granddaughter by 
son or grandson, of, to inherit- 
ance of libertus -a— 
by XII Tables, 308. 
Praetor's edict, 308. 
lex Papia Poppaea, 3808-9. 
heres extraneus of, cannot succeed to 
inheritance of libertus-a civis 
Romanus -a, 309. 
right of, and his heredes to goods of 
Latinus -a Junianus -a, 811-16, 


317- 

right of, and his heredes to goods of 
dediticius -a, 816-17. 

right of, and his heredes where there 
are two or more patrons, 312, 


317. 
how protected against fraudulent 
alienation by libertus -a, 321-3. 
relation of, and colonus, 398. 





INDEX. 


Patronus (continued). 
formula in action by, against libertus 
who has summoned him in vio- 
lation of the edict, 500, 503. 
cannot be summoned by libertus 
without praetor's consent, 628. 
Paulus. 
authority of writings of, 34. 
short account of, 134. 
Peculium. 
origin and nature of, 65, 199. 
castrense, 65, 199. 
quasi castrense, 65, 199. 
adventictum, 65, 199. 
profecticium, 6; ? 199. 
Pedaneus judex, 489. 
Pegasus, 134. 
Per aes et libfam. 
a mode of extinguishing obligations, 
414, 417. 
and eee Nexum. 
Mancipatio. 
Mancipatory Will. 
Peregrinus -a. 
had not connubium or commercium 
gnlese specially privileged, 66, 
I 


69, 176. 
status of offspring of, and civis, eto., 
72-5. 
dominium of, 176. 
cannot take under will, except will 
of a soldier, 208. 
cannot take by fideicommissum, 
287. 
cannot acquire dominium by usucapio 
when bonorum emptor, 824. 
stipulations by, how máde, 354. 
whether, is capable of entering into 
a literal contract, 384. 
feigned to be a civis Romanus in cer- 
tain actions, 486. 
Permissive occupancy. 
compared with commodatum, 607. 
Permutatio. 
an innominate contract, 352. 
Persecutio. 
name Aid proceedings before praetor, 
31. 
Personae. 
divisions of— 
ingenui, libertini, 40. 
cives Romani, libertini, dediticii, 
40. 
sui juris, alieni juris, 58. 
Personarum universitas. 
explained, 142 et seq. 
and see further under Juristic 
person. 
Persons: see Personae and Person- 
arum universitas. 
Petitio. 
sometimes vindicatio and sometimes 
condictio certi called, 463. 


675 
Pignoris capio. 
proceeding in ordinary execution, 326. 
different from bankruptcy prooeed- 
Ings, 333. 
a legis, actio, 468, 482; but se, 
493- 
how introduced, 482, 483. 
resembled English distress, 483. 
Pignus. 
power of pledgee to alienate, 187, 
195. 
& real contract, 348. 


three forms of, 350. 
how enforced, 350-1. 
pledgee can sue for theft of, 488, 437. 
Plebiscitum. . 
definition, 25. 
populus bound by, after lex Hor- 
tensia, 25 


, 25. 
sometimes called lex, 29. 
Plebs, 25. 
Pledgee. 
power of, to alienate, 187, 195. 
can sue for theft, 433, 437. 
and see Pignus. 
Plus petitio. 
meaning, 511-12. 
re, 511. 2 
tempore, 511, 518. 
loco, 511. 


oausd, 511. 
effect of, in intentio, 511, 519. 
in condemnatio, 512. 
in demonstratio, 518, 519. 
avoided by formula arbitraria, 514. 
ex bon& fide, 514. 
changes in law as to, 518-9. 
Pomponius, 134. 
Populiscita. 
leges sometimes called, 29. 
Populus, 25. 
Possessio. 
place of in Roman law, 151, 454, 
622-4. 
pro possessore, 178. 
differs from dominium with respect to 
abandonment, 191. 
acquired through persons in potestate, 
197. 
whether, acquired through persons in 
mancipio, 197. 
whether, acquired through a person 
in manu, 197. 
definition of, 614. 
civilis, 615. 
naturalis, 615. 
for purpose of usucapio, 180, 590-1, 
615, 622. 
for purpose of interdict procedure, 
615, 622. 
discussed with reference to things 
in custody of— 
a slave, 615. 


Xr2 











676 


Possessio (continued). 
discussed with reference to things 
in custody of— 

filiusfamilias, 615. 
an agent, 616. 
& borrower, 616. 
& hirer, 616. 
an emphyteuta, 616. 
a mortgagee, 616, 619. 
& depositary, 590, 617. 
a imive occupant, 617, 


I9. 
defendant in a vindicatio, 
17. 
an owner of a servitude, 617-8. 
- a sequestrator, 617, 619. 
superficiarius, 619. 
colonus, 590. 
an inquilinus, 590. 
peculiarity as to acquisition of, by an 
infant, 621. 
essentiale for acquiring, 620. 
easentials for retaining, 590, 620. 
how, interrupted, 620. 
effect of, of an universitas rerum, 
621. 
Possessor. 
bond fide, rights and liabilities of, as 
to fructus, 190. 
of slave, right of the things ac- 
quired by the slave, 198. 
mad fide, liability in respect of fruo- 
tus, 190. 
and see Possessio. 
Postliminium. 
explained, 100, ror. 
Postumi -ae. 
who were, 112. 
may have testamentary guardian, 109. 
when over in the will their 
birth invalidates the will, 218. 
males rust be disinherited indi- 
vidually, 218. 
females may be disinherited by a 
general clause, if something be 
left to them, 218. 
general statement of the law aa to, 
222-5. 
Aquiliani -ae, 323, 224. 
tias -a6, 223, 224. 
Vellaeani -ae, primi capitis, 223, 224. 
secundi capitis, 223, 224. 
aliens -ae, who were, 112. 
cannot be legatees or heredes, 
208-0; but see, 270. 
cannot take by fideicommissum, 
287-8. 
liberi, sui heredes intestati, 205. 
Potestas abstinendi, 236. 
Potestas deliberandi, 237. 
Praediator. 
definition, 175. 
had power of distress, 483. 


INDEX. 


explained, 175, 180, 484. 
Praefectus, 33. 
Praejudicium. 
& proceeding to settle & preliminary 
issue, 497-8. 
Praesoriptio (the effect of lapse of time). 
longi temporis, 180, 552. 
longissimi temporis, 180, 552. 
temporalis, 181. 
canon law as to, 552. 
change as to length of time necessary 
to produce, 552. 
as to, of servitudes, 553. 
at what moment, begins to run, 554. 
interruption of, 555. 
suspension of, 556. 
effect of, of real actions, 557. 
of personal actions, 557. 
as to, of right to plead exceptio, 558. 
why sometimes used in the sense of 
usucapio, 586. 
Praescriptio (i.e. & clause in the 
formulas). 
nature and object of, 566. 
why so called, 567. 
by which party inserted, 567. 
in action on contract made by slave 
or person in potestate, 568. 
in action against principal for an un- 
certain sum, 568. 
in action against surety for an un- 
certain sum, 568. 
became obsolete, 585. 
ea res agatur de fundo mancipando, 
586. 


jus edicendt of, 26. 
Provinoiae, 33. . ; 
enforced fideicommissa in Provinces, 


286. 
Praestare. 
meaning of, in formula, 460. 
Praetor. 
rotection of minors by, 137. 
norum io granted by, 215,304. 
secundum tabulas— 
when will is informal, 213, 


215. 

when praeteritus died before 
the testator, 231, 231. 

* when will becomes invalid, 

229. 

to persons entitled under a 
valid will, 302. 

contra tabulas— 

to suae heredes passed over 
in the will, 217. 

to sui heredes, other than 
80ns, not disinherited indi- 
vidually, 218. 

to emancipated children passed 
over in the will, 220. 





INDEX. 


Praetor (continued). 
intestati— 
to certain persons not entitled 
by jus civile, 300-1. 
io persons entitled by jus 
civile, 802-3. 
gives potestas abstinendi to sui et ne- 
cessarii heredes, 280. 
relieves extranei heredes who are 
minors and have accepted a 
damnosa hereditas, 237. 
sometimes shortens time for deliberat- 
ing of heres, 239. 
became customary for, to fix time for 
acceptance of hereditas, 244. 
gives patron certain rights in the in- 
heritance of libertus, 307. 
only calls male issue to the succes- 
sion at the death of a patron, 
806. 
gives remedy against debtors who 
have been adrogated or have 
passed into manus, 335-6, 487. 
introduced actio de vi bonorum rap- 
torum, 440. 
quod metus causa, 440. 
gave new remedy for damnum in- 
fectum, 484, 489. 
acquired new power under formulary 
88 


, , Byte, 488. 
introduced actio Rutiliana, 486, 492. 
Serviana, 486, 492. 
Publiciana, 486, 492. 
noxalis for outrage and rapine, 
528 


imperium and jurisdictio of, 542-3, 
-8 


5 . 
Jideicommissariws. 
enforces fideicommissa at Rome, 
286. 
peregrinus. 
origin of, 26. 
jus edicendi of, 26, 31. 
jus gentium promulgated by, 26, 
27. 
«urbanus. 
jus edicendi of, 26, 31. 
precepts of jus gentium adopted 


y, 27. 

Praetorian Will, 207. 
Precarium: see Permissive ocoupancy. 
Prescription. 

acquisitive, 181. 

extinctive, 181. 

and see Praesoriptio. 
Primordial rights, 29. 
Priscus, 134. 
Private International law, 518. 
Privative facts, 3. 
Procedure. 

law of, whether earlier than substan- 

tive law, 457. 
development of, 457. 


677 


Procedure (continued). 
ancient and modern views respecting, 


457- 
governed by law of place where the 
action ig brought, 517. 
by legis actiones: see Legis actiones. 
formula: see Formulary System. 
libellus conventionis: see Libel- 
ary Procedure. 
interdict, 598 et seq. 
Pro-consul, 33. 
Proculus, 134. 
Procurator. 
Caesaris, 33. 
voluntarius, 533. 
distinct from curator, 138. 
alienation by, 187. 
an insolvent cannot be, 331. 
how appointed, 531. 
security by, when plaintiff or defen- 
dant, 535, 538, 540. 
Prodigal. 
interdicted from administering his pro- 
perty, 138. 
though not a minor, bas a curator, 


138. 

Pro herede gestio. 

meaning, 244. 

effect of, 287, 238. 
Property. 

definition of absolute, 154. 

different kinds of partial, 154. 
Provinoes. 

divided between Emperor and people, 


33- 
titles of the governors of, 33. 
tributary, 164. 
stipendiary, 164. 
ownership of land in: see Provincial 
land. 


Provincial land. 
dominium in, belongs to emperor or 
people, 146. 
cannot be sacrum, but may be re- 
garded pro sacro, 147. 
cannot be religiosum, but may be 
regarded pro religioso, 147. 
cannot be acquired by usucapio, 172 ; 
but see, 180-1. 
not subject to quiritary dominion, 176. 
subject to bonitary dominion, 176. 
acquired by longi temporis prae- 
scriptio, 180. 
distinction between, and Italian land 
abolished by Justinian, 180. 
Pubertati proximus. 
who is, 368. 
Puberty. 
what is age of, 133, 368. 
Publicatio, 401. 
Public Will, 207. 
Puchta. 
as to effect of Sc. Juventianum, 602. 


678 


Pupillaris substitutio. 
meaning and effect of, 246-7. 
could only be made to descendants in 
potestate, 247. 
can be made when the descendant is 
disinherited, 247. 
implied in vulgaris substitutio, 247-8. 
Pupillus -a. 
alienation by, 195. 
effect of loan made by, 195, 196. 
paying a debt to, 196. 
conveyance to, 196. 
not bound by contract without au- 
thority of guardian, 361. 
can contract, with guardian’s autho- 
rity, although only seven years 
old, 361. 
surety for, is bound, 871. 
nature of tutor's obligation to, 410. 


Quaestor. 

jus edieendi of, 26. 

power of, under empire, 33. 
Quarta Antonini, 87, 241. 
Quasi-possession, 462, 553, 618. 
Querela inofficiosi testamenti, 322. 
Quiritary dominion: see under Domi- 

nium. 


Bashness, 14. 
Real action: see under Actions. 
Real contract. 
how entered into, 347. 
different kinds of, 
mutuum, 847, 347-8. 
commodatum, 349. 
depositum, 349. 
pignus, 350. 
innominate, 351. 
Reouperator, 48. 
Regula Catoniana, 271. 
Relegation, 101. 
Remainder: see Estate in remainder. 
Replicatio. 
nature, object, and instances of, 565- 
6, 585. 
Rerum universitas, 151-2. 
Res. 
divisions of, 146-7. 
discussed, 148 et seq. 
divini juris, 146, 147. 
humant juris, 146. 
religiosae, 146. 
sacrae, 146. 
eanctae, 147. 
publicae, 147, 153-4. 
privatae, 147, 153-4. 
corporales, 147. 
incorporales, meaning, 147. 
how created and transferred, 165 
et seq. 
mancipti et nec mancipii, 148. 
examples of, 159. 


INDEX, 


Res (continued). 
difference between, 159-60. 
effect of traditio of res mancipii, 
171-2. 


effect of alienation of, by wards 
and women, 195-6. 

communes, 152-3. 
4n nostro patrimonto, 146, 153. 
extra nostrum patrimonium, 146, 153. 
én patrimonio populi, 153. 
Sungibiles, 348. 
gerit domino, 349, 393. 
judicatae, 410, 421, 546 et seq. 

pro veritate accipiuntur, d 
in judicium deductae, 550, 564. 
lítigiosae, 583. 

Responsa prudentium. 

definition, 26. 
when binding on judex, 26, 33. 
rescript of ian respecting, 26. 
a mode of promulgating jus gentium, 


27. 
effect of law of citations on, 34. 
codification of, 34. 
Restipulatio. 
a means of checking vexatious litiga- 
tion, 627, 630. 
Restituere. 
meaning of, 600. 
Right. 
definition, 2. 
divisions of, 4, 6, 7, 38, 39, 150. 
meaning of— 
sanctioned, 4. 
sanctioning, 4. 
ín rem, 6. 
in personam, 6. 
equal, 38. 
unequal, 38. 
real, 39. 
personal, 39. 
primordial, 39. 
res as the subject of a, 149. 
Robbery. 
creates an obligation ex delicto, 
425. 
explained, 439. 
remedy in respect of, 430, 440. 
requires dolus malus, 440. 
legislation respecting, 440. 


Sabinians, 134. 
Sabinus, 134. 
Sacramentum. 
a legis actio, 467. 
procedure in, 468-70, 470, 535, 


538. 
compared to English wager of battle, 


471. 
use of rod in, compared to surrender 
of copyholds by delivery of rod, 


471. 
Bale: sec Emptio et venditio. 





INDEX. 


Salvius Julianus. 
edictum perpetuum of, 31. 
a Sabinian, 134. 
form of allowing certain posthumous 
grandchildren to be instituted 
or disinherited, 223. 
Sanction. 
definition, 2. 
different kinds of, 7, 8. 
of civil law, 464. 
Satisacceptio, or Satisdatio, 383. 
Batisdatio. 
meaning, 383. 
when required of defendant in meal 
action, 533, 536. 
in personal action, 535, 536. 
by representative of defendant, 535. 
not required of plaintiff in real action, 
535. 
not required of cognitor, 535. 
procurator must give, that principal 
would ratify, 585, 538. 
by guardian, 535. 
curator, 535. 
effect of defendant refusing to give in 
real action, 536. 
by heres, 539. 
by stipulatio judicatum solvi, 534, 
538, 539- oe 
pro praede litis et vindiciarum, 
534, 538. 
Savigny. 
as to marriage contract, 69. 
coemptio, 92. 
nature of capitis deminutio, 119. 
separatio fructuum gives bona fide 
possession only, 190 
a8 to interdict quorum bonorum, and 
poesessoria hereditatis petitio, 


304- 
as to correality and solidarity, 377, 


379- 
origin of term transcriptitia nomina, 
387. 
personal execution confined to actions 
on money loans, 388. 
place of possession in jurisprudence, 
454, 623. 
formula consisting of only demon- 
stratio and condemnatio, 498. 
as to time when prescription begins, 
554, 555- 
interruption of prescription, 556. 
effect of prescription on personal 
actions, 557. 
prescription of exceptiones, 558. 
formula in action for an uncertain 
sum, 587. 
whether unde vi applies to mov- 
ables, 605. 
quorum bonorum, 601, 602. 
uti possidetis, 610. 
protection of urban servitudes, 618. 


679 
Savigny (continued). 


as to possession of superficiarius, 619. 
Schools of Jurists: see under Jurists. 
Secret trusts. 

to evade law, how discouraged, 262. 
Seotio bonorum. 

vested dominium in vendee, 333. 

transferred juris universitas, 333. 

how conducted, 401. 

Security: see satisdatio. 
Belf-redress. 

in archaic society, 441. 

superseded by state intervention, 441. 

in case of affront or dishonour, 

451-4. 
in defence of possession, 605. 
Semel heres semper heres. 
meaning of maxim, 248. 
Senate. 

legislative power of, 29. 
Senatusconsultum. 

definition, 25. 

force of, at different periods, 29. 

sometimes called lex, 29. 

Claudianum. 

as to intercourse of freewomen 
with slaves, 76, 77, 78, 115. 
Juventianum. 
abolished usucapio pro herede, 
175, 179, 601-2. 
Largianum. 
as to succession to Latinus Juni- 
anus, 318, 814, 315, 317. 

Macedonianum. 

' prohibited money loans to filius- 
familias without consent of 
paterfamilias, 348. 

exoeptio founded on, 571. 

Neronianum. 

as b. form of legacies, 254, 257, 
I. 
Orphitianum. 
entitled children to succeed their 
mothers, 305. 
Pegasianum. 
heres may retain a fourth of a 
fideicommissum, 273, 278 et 


seq. 
heres may be ordered by praetor 
to make aditio and transfer to 
fideicommissarius, 274. 
fideicommissa placed on same 
footing with legacies and inherit- 
ances as regards caelibes and 
orbi, 287. 
Trebellianum. 
as to rights and obligations of 
heres and fideicommissarius, 
273, 277 et seq. 
the words of, 277. 
Tertullianum. 
entitled mothers to succeed their 
children, 305. 


680 


Senatusconsultum (costinued). 


Velleianum. 
made women incapable of being 
guarantors, 383. 
exceptio founded on, 571. 


Servitude. 


nature of, 155. 
how created, 165-66, 168, 553. 
could not be acquired by usucapio, 
170, 
praedial, 154-5. 
personal, 155, 157. 
rustio, or 
nature of, 155-6. 
examples of, 156. 
when extinguished by non-user, 
169-70, 553- 


nature of, 155-7. 
affirmative, 155-7. 
negative, 155-7. 
altius tollendi discussed, 168. 
ne prospectui officiatur, 170-1. 
ne luminibus officiatur, 170-1. 
ne altius tollatur, 170-1. 
luminum, 170-1. 
actions in respect of, 460-2. 
quasi-possession of, 462, 553, 618. 


ur 


Servus -a. 


manumitted, becomes dediticius-a, 
423 


or Latinus -a, Junianus -a, 43, 44. 
or civis Romanus -a, 48, 44. 
how manumitted, 43, 44, 54-5. 
form of direct bequest of liberty to, 
284 


obstacles to, attaining civitas, 42, 43. 


how manumitted by master under 
twenty, 54-5, 55. 
ns who cannot manumit, 54. 
could not be manumitted by will un- 
less one of a limited number, 
55-7. 
power of master over, recognised by 
jus gentium, 58, 60. 
power of master over, 58-9, 59-60. 
no caput, 60. 
is incapable of marriage, 69. 
status of offspring of, and freeman, 
75, 79. 
and freewoman, 75, 76, 77. 
freewoman who mes, 79. 
a free person might become, by Sc. 
udianum, 78, 115. 
evasion of the census, 114. 
residence at Rome contrary to lex 
(Aelia Sentia ?), 115, 115. 
surrender by pater patratus, I15. 
evasion of military service, 115. 
condemnation for a capital offence, 
116. 
condemnation of & freedman for 
ingratitude, 116. 


INDEX. 


Bervus -& (continued). 


allowing himself to be sold in 
order to share the price, 116. 
in bonis acquires for bonitary pro- 
prietor, 197. 
right of usufructuary to dominium, 
etc., acquired by, 197. 
obligations acquired by, 411. 
instituted by master is heres neces- 
sarius, 235. 
may be instituted heres by master or 
a stranger, 248-9. 
effect of ‘institution of, as heres, 


liberty may be given to, by fideicom- 
missum, 284. 

effect of liberty being given to, 
alienus-a by fideicommissum, 
284, 285-0. 

cannot enter into valid stipulations 
with master, 361. 

cannot be adstipulator, 870. 

liability of surety of, 371. 

who has benefit of obligationes ac- 
quired by, 411-12. 

remedy against person who kills, 443, 


447: 
outrage may be inflicted on master 
through assault, etc. upon, 450. 
liability of master under contract by, 
as exercitor or institor, 523. 
by master’s order, 523. 
in trade, with master’s knowledge, 
524. 


for property converted to his use 
by, 524 


y» . 
when delict by, renders him liable to 
be surrendered in satisfactien, 
528-9. 
has no possession, 615. 


Sestertius. 


change in value of, 537-8. 


Severus. 


constitution of, and Antoninus, as to 
burden of proof in action on 
cautio, 581. 


Slave: see Servus. 
Societas. 


& consensual contract, 889. 
different kinds of, 899. 
division of profit and loss under, 399, 


400. 
how dissolved, 400, 401. 
publicanorum, 400. 
an institution of jus gentium, 400. 
passing of property under, 401. 
when called leonina, 401. 


Soldier. 


effect of error of law by, 132. 
uliarities of will of, 208. 
as beneficium competentiae, 497. 


Solidarity. 


meaning, 376. 











INDEX. 


Solidarity (contin 
how, originates, 376. 
point of agreement between, and cor- 
reality, 376. 
chief differences between, and cor- 


reality, 377. 
Solutio. 
performance of an obligation, 340, 
413 


three elements of, 340. 
effect of substituted, 413. 
imaginaria, by acceptilatio, 413. 
per aes et libram, 414. 
effect of, by third party, 417. 
Sovereign. 
definition of, 2. 
Sovereign States. 
nature of obligations between, 357-8. 
Specificatio. 
meaning, 193. 
examples of, 186, 193. 
Sponsor. 
how interrogated, 371. 
can only be accessory to stipulationes, 
871. 


heres of, not bound, 372. 

in Italy, the liability of ceases in two 
years, 372. 

each, only liable for his share, 

872. 

in provinces each, is liable for the 
whole, but epistola of Hadrian 
gave relief, 372. 

effect of, spaying more than his share, 


972- 
entitled to "declaration by ereditor of 
the amount of the debt, eic., 


373. 

has benefit of lex Cornelia, 3973-4. 

cases to which the lex does not 

apply, 374. 

not bound for more than principal, 874. 

has actio mandati against principal, 
374. 

sometimes bound when principal is 
not, 371. 

can recover double from principal 
unless repaid within six months, 
874. 

could only intervene when both parties 
were cives Romani, 381. 

Bponsio. 

different classes of, 455. 

a kind of wager, 458, 598. 

poenalis, 458, 534, 538. 

pracjudicialts, 458, 534, 538. 

on quorum bonorum, 611. 

as check on vexatious litigation, 626, 


630. 
State. 
dominium of the, 153. 


usureceptio of mortgaged property sold 
by the, 175. 


681 


Status. 
law of, 36-8. 
falls under the three heads of libertas, 
civitas, and familia, 40. 
has disappeared in modern jurispru- 
dence, 41. 
Stipendiaria praedia. 
meaning, 160. 
res nec mancipii, 159. 


Stipendium. 
meaning, 98. 
Btipulatio. 
between heres and fideicommissarius, 
272, 278. 


judicatum solei, 584, 537. 
clauses in, 539, 540. 
pro praede lítis vindiciarum, 584, 
53 
fructuaria, 538, 598, 613. 
and see Verbal contract. 
Subscriptio. 
a form of resoript, 83. 
Succession. 
meaning, 280. 
universal, 280. 
only admitted inter vivos in two 


meaning, 157. 
nature. of possession involved in, 
I 
Sureties. > 
different kinds of, 370-1, 381. 
to what obligations they cau be ac- 
cessury, 371. 
rights and liabilities of, 373-3. 
see Sponsor, Fidepromissor, Fide- 
jussor. 
Syngrapha. 
a species of literal contract, 884 ; and 
see, 387. 


Taxatio. 
& limitation in condemnatio, 496. 
Taxation. 
system of, 164. 
Temerity, 14. 
Tempus. 
continuum, 242. 
utile, 242. 
Testamentifactio. 
fully explained, 209, et seq. 
Testamentum ; see Will. 
Theodosius. 
law of citations, 34. 
constitution ; as to promise of dos by 
third party, 359. 
as to limitation of actions, 544. 
as to thirty years’ praescriptio, 552. 
any prohibitive law is a lex perfeota, 
573. 
Things: see Res. 


682 


Tiberius. 
changed legal effect of confarreatio, 


Title. 
definition, à. 163. la 
as used by English ers, 3. 
Bentham, 3. " 
consisting of human action, 9. 
of real rights, division of, 158. 
as used by Austin, 163. 
differs from titulus of the classical 
juriste, 163-4. 
differs from privilegium, 183. 
civil, of res singulae, mancipatio, 150, 
165. 
in jure cessio, 160, 165. 
usucapio, 171. 
adjudicatio, 182. 
lex, 182. 
natural, of res singulae, traditio, 184, 
188. 
occupatio, 184-5, 191. 
accessio, 185-6, 192-3. 
specificatio, 186, 193. 
perceptio fructuum, 189. 
confusio, 192. 
synopsis of, 194. 
general remarks on, 355-7. 
Titulus: see under Title. 
Traditio. 
& title of natural law, 158, 184. 
ownership in res nec mancipii trans- 


ferred by, 159. 
reason for, and effect of introduction 
of, 162. 


explanation of, 162-3. 

compared with feoffment in English 
law, 163. 

effect of, of res mancipii, 171-2. 

was never fictitious, 190. 

may be conditional, 364. 


an. 
business of miller may confer civitas 
Romans, 52. 
checked inhumanity of a father, 
I. 


constitution, as to position of Latinus 
Junianus who has acquired jus 
quiritium by imperial grant, 
315. 
Transactio. 
an innominate contract, 352. 
Transcriptitia nomina. 
certain entries in account beoks, 
883. 
origin of the term, 387. 
Trebatius. 
opinion of, as to codicils, 288. 
Tribunes. 
had little power under empire, 33. 
Tributaria praedia. 
meaning, 160. 
res neo manoipii, 1§9. 


INDEX. 


Triplicatio. 

nature and object of, 566, 585. 
Tutela. 

definition, 111. 

general explanation, 111. 

legitima agnatorum, 112. 

ronorum, 122. 
of Latins devolves on quiritary owner 
123. 


mulierum, 129, 130. 

how terminated, 132-3. 

an institution of jus civile, 139. 

and see Tutor. 

Tutor. 

testamentarius, who may appoint, 

109. 
to whom, may be appointed, 108, 

110 


form of appointment, 110. 
effect of appointing, before heres, 
207. 
to commenoe to act after death 
of heres, 267. 
inoerta persona cannot be, 268. 
optio or selection of, devised to wife 
in manu, 110. 
may be plena, 110. 
angusta, 110. 
dativus, 111. 
optivus, 111. 
duties of, 1x 1-2. 
legitimus, agnate, 112-18, 115. 
patron, 122. 
other instances, 123. 
Jiduoiarius, 128. 
cessicius, 124. 
when, may be superseded by another 
tutor, 126-7. 
praetorius, 127. 
atilkanws, 127. 
ez lege Julia et Titia, 128. 
dispute ag to number of kinds of, 128. 
kinds of, in time of Justinian, 138. 
when duties of, terminated, 132-3. 
when, required to give security, 186. 
distinct from curator, 138. 
effect of loans and alienations without 
sanction of, 195, 196. 
no condition can be annexed to au- 
thority of, 364. 
magistrates cannot appoint, condi. 
tionally, 364. 
nature of obligation of, to pupillus, 


410. 

degree of diligence required of, 453. 

as to acquisition of possession through, 
21. 


Ulpian. 
authority of writings of, 34. 
short account of, 135. 





INDEX. 


Ulpian (continued). 
definition of a will by, 205. 
ion of the reasons given by, 
why dediticius could not make 
a will, 317-21. 
Unde cognati, 305. 
Unde legitimi, 305. 
Unde liberi, 305. 
Unde vir et uxor, 305. 
Universitas. 
personarum, 142. 
jurts, 151. 
how acquired, 202. 
by will, 202 et seq. 
by intestate succession, 204 


et seq. 
by bonorum venditio, 828-4. 
by bonorum sectio, publicatio, 
333, 401. 
by arrogatio, 835. 
by in manum conventio, 335. 
by in jure cessio hereditatis, 


887. 
Usage. 
& source of law, 34. 
Usucapio. 


a title of jus civile, 158. 
conditions of, 180. 
anges bs 169, 170. 


bonitarz into quiritary do- 
ien. 172. 
length of on required for, 172. 
exceptions as to land, 174,176. 
possession given by a non-proprietor 
may produce, 172, 178. 
reason, 172. 
which cannot be acquired by, 
172, 173. 
requires bona fide possession, 173. 
why movables are seldom acquired 
by, 178. 
lucrativa pro herede, 174, 178. 
land may be acquired in a year 
by, 174. " 
motive for allowing, 174. 
made revocable, 175, 178. 
of no avail against heres neces- 
sarius, 175. 
usureceptio is a species of, 176. 
of movables compared with English 
law of estrays, 178. 
of thing mortgaged to the state and 
sold, 175, 180. 
law relating to, remodelled by Jus- 
tinian, 180. 
distinguished from limitation of ac- 
tions, 181. 
how far recognised in English law, 
181. 
usufructuary cannot acquire a slave 
held in usufruct by, 198. 
bonorum possessor, or emptor, acquires 
dominium by, 324. 


683 


Usucapio (continued). 
why praescriptio is sometimes used as 
equivalent to, 586. 
effect of, of a universitas, as to the 
elements of which it is com- 
posed, 621-2. 
Usucapion-possession, 180, 615, 622. 
Usureceptio. 


explained, 175. 
Usus 


a mode of creating manus, 87, 88 
an t in property, explained, 


extinguished by capitis deminutio 
minima till Justinian, 336. 
Ususfructus. 

& res incorporalis, 147, 157. 

effect of in jure ceesio of, 166. 

how created, 165-6. 

as to things ‘acquired by a slave sub- 
ject to, 197. 

whether possession can be acquired 
through a slave subject to, 108. 

extinguished by capitis deminutio 
minima till Justinian, 336. 


Vadimonium. 
for second appearance of defendant 
to receive a judex, 504. 
by defendant to reappear after ad- 
journment, 628. 
amount of, in different actiona, 629. 
cautio judicio sisti, 631. 
solvi, 631. 
Valentinian. 
law of citations, 34. 
alteration of law Terms and Vacations, 


290. 
constitution as to violent seizing of 
& man's own property, 440, 005. 
Vangerow. 
as to nature of aquaeductas, 156. 
effect of pactio in creating servi- 
tudes, 168. 
whether separatio fructuum gives 
boná fide possessor dominium, 


pater. being witness to will of 
filiusfamilias, 206. 

interdictum quorum bonorum, and 
possessoria hereditatis petitio, 


304. 
correality and solidarity, 377, 379- 


place of oninjurisprudence, 
454. 924. 

claim of compensatio and deductio, 
522. 

time prescription begins to run, 
554, 555+ 


interruption of prescription, 556. 

effect of prescription on personal 
actions, 557. 

quorum bonorum, 602. 





684 


Vangerow (continued). 
protection of urban servitudes, 618. 
possession of superficiarius, 619. 
Verbal contract. 
modes of contracting without previous 
interrogation, 855, 359. 
stipulatio, 353-383. 
rested on fiction of a money loan, 346. 
how entered into, 853-4, 955. 
form of, peculiar to Cives Romani, 
854 ; why, 357. 
which aliens may use, 854. 
necessity for consecrated forms in, 
abolished, 358. 
effect of impossibility of object of, 
859. 
non-existence of subject-matter of, 
359. 
impossible condition in, 359. 
to convey promisee’s property to 
promisee, 360. 
to convey after or day before death 
of either party, 360, 365, 366. 
want of correspondence between 
question and answer in, 360. 
between pater and filiusfamilias, 
861. 
where promisor is a filiafamilias, 
servus, wife in manu, or person 
in mancipio, 861. 
one of the parties to, being deaf, 
dumb, or a lunatic, 361. 
the promisor being a pupillus -a, 
801. 
for payment to stipulator and a 
third party, 860, 365, 367. 
for payment to stipulator or a third 
party, 381. 
certain objects which could not be 
secured by, 362. 
reason why, became an universal form 
of contract, 364-5. 
no consideration essential to, but 
promisor may plead exceptio, 


effect of a written document accom- 
panying, 369. 
nature of, modified, 369. 
a real contract merges in, 388. 
is unilateral, 390. 
extinguished by acceptilatio, 413. 
Vespasian. 
confers Latinitas on Spain, 49. 
alters rule as to offspring of freeman 
and slave, 77. 
Sc. Pegasianum in reign of, 278. 
Vexatious litigation. 
checks upon, 626. 
on part of defendant— 
sometimes double damages, 625, 
29. 


INDEX. 


Voexatious litigation (continued). 

defendant becoming ignominiosus 

in some cases, 628. be dis 
ty if in jus vocatio i 

P' regarded, 638. 

security for appearance if the case 
be adjourned, 628-0. 

on part of plaintiff— 

judicium calumniae, 626, 627. 

contrarium judicium, 626, 627. 

oath, 626. 

restipulatio, 626, 627. 

some persons cannot sue without 
praetor's leave, 628. 

in time of Justinian, 630-1. 
Vindicatio. 

a name for real action, 456. 
Vindiciae dicendae, 602, 614. 
Vindicta. 

manumission by, 43, 46. 

when compulsory, 48. 
Vis. 
absoluta, 21. 
compulsiva, 31. 
relief against, 22. 
definition, 22. 
ez concentu, 614. 
Volition. 
meaning of, 12. 
Vulgaris substitutio. 
meaning and general account of, 
244—5 


effect of cretio imperfecta upon, 245, 
247. 
implied in pupillaris substitutio, 248. 


Wild animals. 
&re property of first occupant, 184. 
how property in, is lost, 184. 
effect of, being partly tame, 192. 
Will. 
definition, 205. 
made in comitiis calatis, 202, 205. 
in procinctu, 202, 205. 
per aes et libram, 202, 205. 
praetorian, 207. 
nuncupative, 207. 
by jus tripertitum, 207. 
publie, 207. 
of a soldier, 208, 208. 
changes in law relating to by Justi- 
nian, 206-7. 
a form of manumission, 49, 44, 45. 
who could make a, 209-10. 
who could take under a, 210-12. 
who could be a witness of a, 204, 
206, 212. 
form necessary for instituting heres 
in, 212, 214. 
effect of, when informal, 218, 229. 
sui heredes being passed over in 
a, 216 et seq., 220-2; change 
of Justinian, 222. 





Yow w 


INDEX. 


Will (continued). 
form necessary for disinheriting sui 
heredes by a, 218; change 
of Justinian, 222. 
effect of grant of contra-tabular pos- 
session on a, 226. 
form of vulgaris substitutio in a, 244, 
245. 
pupillaris substitutio in a, 246. 
is invalidated by erroris causae pro- 
batio creating patria potestas 
except in certain cases, 74, 
227. 

birth of postumi liberi who have 
not been disinherited and who 
survive testator, 218, 231. 

& person succeeding to the place 
of suus heres, unless provided 
against in the will, 219. 

adrogatio and adoptio, 287 ; but 
see, 229. 

reoeiving & wife in manus, or 
marrying & person already in 
manus, 227. 

manumission of & son after first or 
second sale, 227. 

subsequent will, 228. 

capitis deminutio of testator, 
228. 

express revocation but not by 
mere change of intention, 230-1, 


234- 
new form of revocation in Justinian's 
time, 234, 235. 
not always inoperative though it be- 
comes invalid, 229. 
informal, might sometimes take effect 
as & codicil, 388. 
formalities attending the opening, etc. 
of a, 293. 
Witness. 
who may be, of a will, 204, 206, 
212. 
Woman. 
&, cannot adopt, 85, 86. 
formerly could not be adrogated, 
8 


when a, is subject to manus, 87 et 


seq. 
how released from manus, 106-7. 
testamentary capacity of a, 89, 93, 


tutela. ver a, who has attained the 

age of puberty, 129. 

when exempt from, 109. 

by law of Bithynia, 130. 

ceases before Justinian’s time, 
131. 
atic, 94, 118. 

fiduciary, 93. 


685 


Woman (continued). 


testamentary, 110. 

authority of tutor of a, who is of age 
a mere formality in most cases, 
129-80. 

tutor of &, who is of age is not liable 
in respec' of his administration, 
139. 

effect of error of law by a, 131-2. 

how tutela over a, is terminated, 

a, might have both a tutor and cura- 
tor, 138. 

alienation by a, 195, 196. 

conveyance to a, 196. 

payment of debt to a, when a dis 

, 196. 

effect of will of a, when unauthorised 
by tutor, 213. 

limited capacity of a, to take under 

211, 277, 285. 

rights, etc. of a, when sua heres: see 
under Heres. 

when a, is entitled to succeed as ag- 
nate, 297, 298, 299. 

a, agnate beyond sister entitled to 
bonorum possessio as cognate, 
801. 

effect of payment to a, by mistake, 


sponsor « d  fidepromissor of a, may be 
bound, 371. 

a, could not "be guarantor, 383. 

effect of acceptilatio by » without 
tutor's authority, 418 

& married, 

& sua et necessaria heres when in 
manus of testator, but has 
potestas abstinendi, 237, 294. 

right of succession to husband, 
305. 

in manu, cannot be bound by sti- 
pulation to husband or to anyone 
else, 861. 

in manu, to what extent could be 
adstipulator, 870. 

in manu, as to obligation of, 411. 

when entitled to beneficium com- 
petentiae against husband, 497. 

Wrong. 
definition of, 4. 
Wrongful aot. 
contrasted with disposition, 9-11. 


Zeno. 
emphyteusis is a contract sui generis 
and must be in writing, 397. 
changes in law as to plus petitio, 518, 


519. 
payment of costs by loser of the cause, 
3t. 


THE END.